U.S. District Court Eastern District of Michigan (Flint) CIVIL DOCKET FOR CASE #: 4:19−cv−13341−SDD−RSW

reassigned

Priorities USA v. Nessel Assigned to: District Judge Stephanie Dawkins Davis Referred to: Magistrate Judge R. Steven Whalen Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/12/2019 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Priorities USA

represented by Amanda Beane Perkins Coie LLP 1201 Third Avenue Ste 4900 Seattle, WA 98101 206−359−3965 Email: abeane@perkinscoie.com ATTORNEY TO BE NOTICED

Christopher J. Bryant Perkins Coie LLP 700 13th St NW Suite 800 Washington, DC 20005 202−654−6200 Email: cbryant@perkinscoie.com ATTORNEY TO BE NOTICED

Courtney Elgart Perkins Coie LLP 700 Thirteenth St NW Suite 800 Washington, DC 20005 202−654−6200 Email: celgart@perkinscoie.com ATTORNEY TO BE NOTICED

Kevin J. Hamilton Perkins Coie LLP 1201 Third Ave. Suite 4900 Seattle, WA 98101 206−359−8741 Fax: 206−359−9741 Email: khamilton@perkinscoie.com ATTORNEY TO BE NOTICED

Marc E. Elias Perkins Coie 607 Fourteenth Street, N.W. Washington, DC 20005−2011 202−628−6600 Email: MElias@perkinscoie.com ATTORNEY TO BE NOTICED

Sarah Prescott Salvatore Prescott, PLLC 105 East Main Street Northville, MI 48167 248−679−8711 Fax: 248−773−7280 Email: prescott@spplawyers.com

Plaintiff Rise, Inc.
Plaintiff Detroit/Downriver Chapter of the A. Philip Randolph Institute
V. Defendant Dana Nessel

ATTORNEY TO BE NOTICED
represented by Amanda Beane (See above for address) ATTORNEY TO BE NOTICED
Christopher J. Bryant (See above for address) ATTORNEY TO BE NOTICED
Courtney Elgart (See above for address) ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) ATTORNEY TO BE NOTICED
Marc E. Elias (See above for address) ATTORNEY TO BE NOTICED
represented by Amanda Beane (See above for address) ATTORNEY TO BE NOTICED
Christopher J. Bryant (See above for address) ATTORNEY TO BE NOTICED
Courtney Elgart (See above for address) ATTORNEY TO BE NOTICED
Sarah Prescott (See above for address) ATTORNEY TO BE NOTICED
Marc E. Elias (See above for address) ATTORNEY TO BE NOTICED
represented by Erik A. Grill Michigan Department of Attorney General PO Box 30736 Lansing, MI 48909 517−335−7659 Email: grille@michigan.gov ATTORNEY TO BE NOTICED
Heather S. Meingast MI Dept of Attorney General Appellate Division P.O. Box 30736 Lansing, MI 48909 517−335−7659 Email: meingasth@michigan.gov

Intervenor Republican National Committee
Intervenor Michigan Republican Party Intervenor Michigan Senate
Intervenor Michigan House of Representatives

ATTORNEY TO BE NOTICED
represented by Kurtis T. Wilder Email: wilder@butzel.com ATTORNEY TO BE NOTICED
Steven R. Eatherly Butzel Long 150 W. Jefferson Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: eatherly@butzel.com ATTORNEY TO BE NOTICED
represented by Kurtis T. Wilder (See above for address) ATTORNEY TO BE NOTICED
Steven R. Eatherly (See above for address) ATTORNEY TO BE NOTICED
represented by Michael K. Steinberger Bush Seyferth PLLC 100 W. Big Beaver Road Suite 400 Troy, MI 48141 248−822−7805 Fax: 248−822−7805 Email: steinberger@bsplaw.com ATTORNEY TO BE NOTICED
Patrick G. Seyferth Bush, Seyferth & Paige 100 W. Big Beaver Road Suite 400 Troy, MI 48084−3107 248−822−7800 Fax: 248−822−7852 Email: seyferth@bsplaw.com ATTORNEY TO BE NOTICED
represented by Michael K. Steinberger (See above for address) ATTORNEY TO BE NOTICED
Patrick G. Seyferth (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/12/2019

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−7483386 − Fee: $ 400. County of 1st Plaintiff: Wayne − County Where Action Arose: Wayne − County of 1st Defendant: Wayne.

11/13/2019 11/13/2019
11/13/2019 11/18/2019 11/20/2019 12/04/2019
12/05/2019 12/05/2019 12/20/2019 12/20/2019 12/23/2019 12/23/2019 12/23/2019 01/02/2020 01/09/2020
01/27/2020
01/27/2020
01/27/2020 01/27/2020
01/27/2020 01/28/2020

[Previously dismissed case: No] [Possible companion case(s): None] (Prescott, Sarah) (Entered: 11/12/2019)
2 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Prescott, Sarah) (Entered: 11/13/2019)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LGra) (Entered: 11/13/2019)
3 SUMMONS Issued for *Dana Nessel* (LGra) (Entered: 11/13/2019)
4 NOTICE of Appearance by Marc E. Elias on behalf of Priorities USA. (Elias, Marc) (Entered: 11/18/2019)
5 CERTIFICATE of Service/Summons Returned Executed. Priorities USA served on 11/15/2019, answer due 12/6/2019. (Elias, Marc) (Entered: 11/20/2019)
6 STIPULATED ORDER Extending Time for Defendant to Respond to Plaintiff's Complaint. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/04/2019)
7 ATTORNEY APPEARANCE: Heather S. Meingast appearing on behalf of Dana Nessel (Meingast, Heather) (Entered: 12/05/2019)
8 ATTORNEY APPEARANCE: Erik A. Grill appearing on behalf of Dana Nessel (Grill, Erik) (Entered: 12/05/2019)
9 Ex Parte MOTION for Leave to File Excess Pages for Motion to Dismiss by Dana Nessel. (Meingast, Heather) (Entered: 12/20/2019)
10 MOTION to Dismiss by Dana Nessel. (Meingast, Heather) (Entered: 12/20/2019)
11 ORDER Regarding Certification Requirements. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/23/2019)
12 ORDER Granting Defendant's Ex Parte Motion for Leave to File Excess Pages (Dkt. 9 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/23/2019)
13 ORDER Regarding Motion to Dismiss. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/23/2019)
14 NOTICE of Appearance by Kevin J. Hamilton on behalf of Priorities USA. (Hamilton, Kevin) (Entered: 01/02/2020)
15 STIPULATED ORDER EXTENDING TIME FOR PLAINTIFF TO RESPOND TO DEFENDANTS MOTION. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/09/2020)
16 STIPULATED ORDER EXTENDING TIME FOR PLAINTIFF TO RESPOND TO DEFENDANTS COMPLAINT. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 01/27/2020)
17 AMENDED COMPLAINT filed by Priorities USA, Rise, Inc., Detroit/Downriver Chapter of the A. Philip Randolph Institute against Dana Nessel. NO NEW PARTIES ADDED. (Elias, Marc) (Entered: 01/27/2020)
18 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Rise, Inc. (Elias, Marc) (Entered: 01/27/2020)
19 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Detroit/Downriver Chapter of the A. Philip Randolph Institute (Elias, Marc) (Entered: 01/27/2020)
20 MOTION to Consolidate Cases by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 01/27/2020)
21 Ex Parte MOTION for Leave to File Excess Pages by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered:

01/28/2020
01/28/2020 01/30/2020 01/31/2020 01/31/2020 02/07/2020 02/10/2020 02/10/2020 02/11/2020 02/11/2020 02/11/2020 02/14/2020 02/18/2020

01/28/2020)
22 MOTION for Preliminary Injunction by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Attachments: # 1 Exhibit 1 − Brief in Support of Motion for Preliminary Injunction, # 2 Index of Exhibits 2 − Index, # 3 Exhibit 3 − Declaration of Chris Bryant, # 4 Exhibit 4 − Declaration of Guy Cecil, # 5 Exhibit 5 − Declaration of Andrea Hunter, # 6 Exhibit 6 − Declaration of Maxwell Lubin, # 7 Exhibit 7 − Declaration of Dr. Maxwell Palmer, # 8 Exhibit 8 − Declaration of Nse Ufot, # 9 Exhibit 9 − Letter to Defendant Attorney General Dana Nessel, # 10 Exhibit 10 − Letter to Michigan Secretary of State Jocelyn Benson and to Michigan Attorney General Dana Nessel, # 11 Exhibit 11 − Letter to Michigan County Prosecutor Carol Siemon, # 12 Exhibit 12 − Secretary of States Office, 2018 Michigan Election Results, # 13 Exhibit 13 − Danielle Burr, Update on Uber Drives the Vote, # 14 Exhibit 14 − National Conference of State Legislatures, State Laws Governing Early Voting, # 15 Exhibit 15 − National Conference of State Legislatures, Absentee and Early Voting, # 16 Exhibit 16 − Ashley Schafer, City preps for uptick of absentee voters, # 17 Exhibit 17 − Jackie Smith, Clerks prepare to handle spike in absentee voters in March presidential primary election, # 18 Exhibit 18 − Declaration of Andy Didorosi) (Elias, Marc) (Entered: 01/28/2020)
23 MOTION to Expedite by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Attachments: # 1 Exhibit Brief in Support of Motion to Expedite) (Elias, Marc) (Entered: 01/28/2020)
24 RESPONSE to 23 MOTION to Expedite filed by Dana Nessel. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Letter from Perkins Coie to Attorney General Nessel, # 3 Exhibit B. Letter from Perkins Coie to Prosecutor Gary Rapp, # 4 Exhibit C. Emails between Sarah Prescott and Erik Grill) (Meingast, Heather) (Entered: 01/30/2020)
Text−Only Order of reassignment from District Judge Mark A. Goldsmith to District Judge Stephanie Dawkins Davis pursuant to Administrative Order 20−AO−010. (SSch) (Entered: 01/31/2020)
25 REPLY to Response re 23 MOTION to Expedite filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 01/31/2020)
26 RESPONSE to 20 MOTION to Consolidate Cases filed by Dana Nessel. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Email exchange between Erik Grill and Sarah Prescott) (Meingast, Heather) (Entered: 02/07/2020)
27 MOTION to Dismiss by Dana Nessel. (Meingast, Heather) (Entered: 02/10/2020)
28 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Motion to Dismiss by Dana Nessel. (Meingast, Heather) (Entered: 02/10/2020)
TEXT−ONLY ORDER GRANTING 21 Ex Parte MOTION for Leave to File Excess Pages filed by Rise, Inc., Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/11/2020)
29 ORDER denying 10 Motion to Dismiss; denying 23 Motion to Expedite and setting briefing schedule on 27 Motion to Dismiss: Response due by 2/24/2020 and reply due by 2/28/2020. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/11/2020)
Set/Reset Deadlines as to 27 MOTION to Dismiss . Response due by 2/24/2020; Reply due by 2/28/2020. (THal) (Entered: 02/11/2020)
TEXT−ONLY ORDER Denying as Moot 20 MOTION to Consolidate Cases filed by Rise, Inc., Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/14/2020)
30 RESPONSE to 22 MOTION for Preliminary Injunction filed by Dana Nessel. (Meingast, Heather) (Entered: 02/18/2020)

02/18/2020 02/19/2020 02/19/2020 02/19/2020 02/20/2020 02/20/2020 02/24/2020
02/24/2020 02/26/2020
02/26/2020 02/27/2020 03/02/2020 03/03/2020 03/04/2020 03/04/2020 03/09/2020 03/09/2020 03/09/2020 03/11/2020

31 MOTION for Leave to File Excess Pages for Response in Opposition to Plaintiffs' Motion for Preliminary Injunction by Dana Nessel. (Meingast, Heather) (Entered: 02/18/2020)
TEXT−ONLY ORDER Granting 28 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Motion to Dismiss filed by Dana Nessel. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/19/2020)
32 NOTICE of Appearance by Kurtis T. Wilder on behalf of Republican National Committee, Michigan Republican Party. (Wilder, Kurtis) (Entered: 02/19/2020)
33 MOTION to Intervene by Michigan Republican Party, Republican National Committee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Wilder, Kurtis) (Entered: 02/19/2020)
34 NOTICE of Appearance by Steven R. Eatherly on behalf of Michigan Republican Party, Republican National Committee. (Eatherly, Steven) (Entered: 02/20/2020)
35 [STRICKEN] ANSWER to Amended Complaint with Affirmative Defenses by Michigan Republican Party, Republican National Committee. (Eatherly, Steven) Modified on 6/4/2020 (THal). (Entered: 02/20/2020)
36 [STRICKEN] RESPONSE to 27 MOTION to Dismiss filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Attachments: # 1 Exhibit 1−Declaration of Max Lubin) (Elias, Marc) Modified on 2/26/2020 (THal). (Entered: 02/24/2020)
37 Ex Parte MOTION for Leave to File Excess Pages by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 02/24/2020)
TEXT−ONLY ORDER GRANTING 31 MOTION for Leave to File Excess Pages for Response in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Dana Nessel. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/26/2020)
38 ORDER granting in part 37 Motion for Leave to File Excess Pages and striking 36 Response. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 02/26/2020)
39 MOTION to Intervene by Michigan Senate, Michigan House of Representatives. (Attachments: # 1 Exhibit 1) (Seyferth, Patrick) (Entered: 02/27/2020)
40 RESPONSE to 27 MOTION to Dismiss filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 03/02/2020)
41 REPLY to Response re 22 MOTION for Preliminary Injunction filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 03/03/2020)
42 RESPONSE to 39 MOTION to Intervene filed by Dana Nessel. (Meingast, Heather) (Entered: 03/04/2020)
43 RESPONSE to 33 MOTION to Intervene filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 03/04/2020)
44 REPLY to Response re 27 MOTION to Dismiss filed by Dana Nessel. (Meingast, Heather) (Entered: 03/09/2020)
45 Ex Parte MOTION for Leave to File Excess Pages for Reply Brief by Dana Nessel. (Meingast, Heather) (Entered: 03/09/2020)
TEXT−ONLY ORDER GRANTING 45 Ex Parte MOTION for Leave to File Excess Pages for Reply Brief filed by Dana Nessel. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 03/09/2020)
46 REPLY to Response re 33 MOTION to Intervene filed by Michigan Republican Party. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Certificate of

03/12/2020 03/12/2020 03/19/2020 03/27/2020 03/28/2020 03/30/2020 03/31/2020 03/31/2020 04/18/2020 05/06/2020 05/07/2020 05/07/2020 05/08/2020
05/22/2020 05/22/2020 06/01/2020 06/01/2020

Service) (Wilder, Kurtis) (Entered: 03/11/2020)
47 NOTICE of Appearance by Christopher J. Bryant on behalf of Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Bryant, Christopher) (Entered: 03/12/2020)
48 RESPONSE to 39 MOTION to Intervene filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elias, Marc) (Entered: 03/12/2020)
49 REPLY to Response re 39 MOTION to Intervene Reply in Support of The Michigan Senate and Michigan House of Representatives' Motion to Intervene filed by Michigan House of Representatives, Michigan Senate. (Seyferth, Patrick) (Entered: 03/19/2020)
50 NOTICE by Michigan House of Representatives, Michigan Senate re 39 MOTION to Intervene Notice of Supplemental Authority (Attachments: # 1 Exhibit 1) (Seyferth, Patrick) (Entered: 03/27/2020)
51 NOTICE by Michigan House of Representatives, Michigan Senate re 39 MOTION to Intervene Notice of Supplemental Authority (Attachments: # 1 Exhibit 1) (Seyferth, Patrick) (Entered: 03/28/2020)
52 NOTICE by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc. re 51 Notice (Other), 50 Notice (Other) of Response to Notice of Supplemental Authority (Elias, Marc) (Entered: 03/30/2020)
53 NOTICE of Appearance by Courtney Elgart on behalf of Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Elgart, Courtney) (Entered: 03/31/2020)
54 NOTICE by Michigan House of Representatives, Michigan Senate re 39 MOTION to Intervene Notice of Supplemental Authority (Attachments: # 1 Exhibit 1) (Seyferth, Patrick) (Entered: 03/31/2020)
55 NOTICE OF HEARING on 33 MOTION to Intervene , 39 MOTION to Intervene , 27 MOTION to Dismiss . Motion Hearing set for 5/8/2020 11:00 AM before District Judge Stephanie Dawkins Davis in Flint. (THal) (Entered: 04/18/2020)
56 NOTICE Concerning Zoom Virtual Court/Chambers Proceedings as to 39 MOTION to Intervene , 33 MOTION to Intervene , 27 MOTION to Dismiss. (THal) (Entered: 05/06/2020)
57 NOTICE of Appearance by Michael K. Steinberger on behalf of Michigan House of Representatives, Michigan Senate. (Steinberger, Michael) (Entered: 05/07/2020)
58 ATTORNEY APPEARANCE: Amanda Beane appearing on behalf of Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc. Appearance of Amanda Beane (Beane, Amanda) (Entered: 05/07/2020)
Minute Entry for proceedings before District Judge Stephanie Dawkins Davis: Motion Hearing held via Zoom on 5/8/2020 re 39 MOTION to Intervene filed by Michigan Senate, Michigan House of Representatives, 33 MOTION to Intervene filed by Michigan Republican Party, Republican National Committee, 27 MOTION to Dismiss filed by Dana Nessel. Disposition: Motions taken under advisement (Court Reporter: Rob Smith) (THal) (Entered: 05/08/2020)
59 ORDER granting in part and denying in part 27 Motion to Dismiss. Signed by District Judge Stephanie Dawkins Davis. (Brown, A.) (Entered: 05/22/2020)
60 ORDER granting 33 Motion to Intervene; granting 39 Motion to Intervene. Signed by District Judge Stephanie Dawkins Davis. (Brown, A.) (Entered: 05/22/2020)
61 ANSWER to Amended Complaint with Affirmative Defenses by Michigan Republican Party, Republican National Committee. (Wilder, Kurtis) (Entered: 06/01/2020)
62 ANSWER to Amended Complaint with Affirmative Defenses by Michigan House of Representatives, Michigan Senate. (Seyferth, Patrick) (Entered: 06/01/2020)

06/02/2020 06/02/2020 06/03/2020 06/04/2020
06/05/2020 06/05/2020 06/05/2020 06/05/2020 06/08/2020
06/12/2020 06/12/2020
06/17/2020 06/26/2020 06/26/2020

63 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Republican National Committee (Wilder, Kurtis) (Entered: 06/02/2020)
64 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Michigan Republican Party (Wilder, Kurtis) (Entered: 06/02/2020)
65 ANSWER to Amended Complaint with Affirmative Defenses by Dana Nessel. (Meingast, Heather) (Entered: 06/03/2020)
66 TRANSCRIPT of Motion Hearings held on 05/08/2020. (Court Reporter: Robert L. Smith) (Number of Pages: 64) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/25/2020. Redacted Transcript Deadline set for 7/6/2020. Release of Transcript Restriction set for 9/2/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter Robert L Smith (ph. 313−234−2612) before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Smith, R.) (Entered: 06/04/2020)
67 Ex Parte MOTION for Leave to File Excess Pages for Response to Plaintiffs' Motion for a Preliminary and Permanent Injunction by Michigan House of Representatives, Michigan Senate. (Seyferth, Patrick) (Entered: 06/05/2020)
68 RESPONSE to 22 MOTION for Preliminary Injunction filed by Michigan House of Representatives, Michigan Senate. (Seyferth, Patrick) (Entered: 06/05/2020)
69 Ex Parte MOTION for Leave to File Excess Pages by Michigan Republican Party, Republican National Committee. (Wilder, Kurtis) (Entered: 06/05/2020)
70 RESPONSE to 22 MOTION for Preliminary Injunction filed by Michigan Republican Party, Republican National Committee. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7) (Wilder, Kurtis) (Entered: 06/05/2020)
TEXT−ONLY ORDER GRANTING 69 Ex Parte MOTION for Leave to File Excess Pages filed by Michigan Republican Party, Republican National Committee and GRANTING 67 Ex Parte MOTION for Leave to File Excess Pages for Response to Plaintiffs' Motion for a Preliminary and Permanent Injunction filed by Michigan Senate, Michigan House of Representatives. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 06/08/2020)
71 Ex Parte MOTION for Leave to File Excess Pages (unopposed) by All Plaintiffs. (Prescott, Sarah) (Entered: 06/12/2020)
72 REPLY to Response re 22 MOTION for Preliminary Injunction filed by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Declaration of Courtney Elgart, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I) (Elias, Marc) (Entered: 06/12/2020)
TEXT−ONLY ORDER granting 71 Ex Parte MOTION for Leave to File Excess Pages (unopposed) filed by Rise, Inc., Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA. Signed by District Judge Stephanie Dawkins Davis. (THal) (Entered: 06/17/2020)
73 NOTICE by Detroit/Downriver Chapter of the A. Philip Randolph Institute, Priorities USA, Rise, Inc. re 22 MOTION for Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Exhibit Deon v. Barasch) (Elias, Marc) (Entered: 06/26/2020)
74 NOTICE OF HEARING BY VIDEO CONFERENCE on 22 MOTION for Preliminary Injunction . Motion Hearing set for 7/14/2020 11:00 AM before District Judge Stephanie Dawkins Davis |Zoom Webinar Information: https://zoom.us/j/92538684766?pwd=ZXZxczRGdTU2and1ZDlsV1JUSWZzdz09 Password: 229158 Or iPhone one−tap : US:

+16027530140,,92538684766#,,,,0#,,229158# or +12133388477,,92538684766#,,,,0#,,229158#| (THal) (Entered: 06/26/2020)

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 1 filed 11/12/19 PageID.1 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA,
Plaintiff,
v.
DANA NESSEL, in her official capacity as ATTORNEY GENERAL OF THE STATE OF MICHIGAN,
Defendant.

NO.
JUDGE
MAGISTRATE
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(42 U.S.C. § 1983)

Plaintiff, complaining of Defendant Dana Nessel, in her official capacity as Michigan Attorney General (the “Attorney General”), says and alleges:
INTRODUCTION 1. “[E]ach and every citizen has an inalienable right to full and effective participation in the political process,” Reynolds v. Sims, 377 U.S. 533, 565 (1964), and the choice whether to exercise the right to vote is central to the vindication of that right. See League of Women Voters v. Hargett, No. 3:19-CV-00385, 2019 WL 4342972, at *12 (M.D. Tenn. Sept. 12, 2019) (“Registering to vote is not a politically neutral act, and neither is declining to.”). As Justice Powell eloquently noted, “the citizen who distributes his party’s literature, who helps to register voters, or who

Case 4:19-cv-13341-SDD-RSW ECF No. 1 filed 11/12/19 PageID.2 Page 2 of 18
transports voters to the polls on Election Day performs a valuable public service” that supports our democratic process. Branti v. Finkel, 445 U.S. 507, 529 n. 10 (1980) (Powell, J., dissenting). These acts not only support the democratic process, but they also represent an outward manifestation of political expression and association, which are protected by the First and Fourteenth Amendments to the United States Constitution. See N.A.A.C.P. v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006).
2. A supermajority of Michigan voters expressed an unequivocal desire to expand access to voting for all Michigan citizens with passage of Proposition 3 in 2018. Proposition 3 enshrined in the Michigan Constitution eight enumerated voting rights all aimed at expanding access to the ballot and making it easier to vote. Included in these new rights are expanded no-excuse absentee and early voting and the right to register to vote any day, inclusive of Election Day. But these rights can be fully effectuated only if Michigan citizens have the ability to freely associate and organize throughout all phases of the voting lifecycle—that is, communicating about candidates and issues, conducting voter registration drives, and ensuring that all eligible voters have an opportunity to make it to the polls.
3. Some Michigan citizens are left out of this new, expanded access to the franchise because of criminal penalties on efforts to assist voters. Michigan law
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Case 4:19-cv-13341-SDD-RSW ECF No. 1 filed 11/12/19 PageID.3 Page 3 of 18
makes it a misdemeanor to “hire a motor vehicle” to transport voters to the polls unless those voters are “physically unable to walk.” Mich. Comp. Law. § 168.931(1)(f) (the “Voter Transportation Ban”). Michigan law also criminalizes organizing efforts to assist voters in submitting applications for absentee ballots. Mich. Comp. Law § 168.759(4), (5), (8) (the “Absentee Ballot Organizing Ban”).
4. Together, the Voter Transportation Ban and the Absentee Ballot Organizing Ban make it even more difficult for voters for whom voting is already difficult—in particular, voters without access to private transportation—to vote. These voters include senior voters, minority voters, voters who are disabled, and low-income voters, who traditionally use absentee voting and lack access to private transportation at greater rates. The Voter Transportation Ban and the Absentee Ballot Organizing Ban each represent unreasonable and unnecessary obstacles to voting that violate the First and Fourteenth Amendments and the clearly expressed wishes of a supermajority of the state.
5. The Voter Transportation Ban directly contradicts federal law that permits hired voter transportation to the polls. The Voter Transportation Ban and the Absentee Ballot Organizing Ban, together and individually, create obstacles to voting that constitute an undue burden on the right of Michigan citizens to vote. In addition, the Voter Transportation Ban and the Absentee Ballot Organizing Ban each criminalize constitutionally protected political activity of individuals and
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Case 4:19-cv-13341-SDD-RSW ECF No. 1 filed 11/12/19 PageID.4 Page 4 of 18
organizations who desire to increase voter participation by transporting voters to the polls or by assisting voters in applying for absentee ballots. Finally, the Voter Transportation Ban discriminates against Michigan citizens who are physically able to walk but nonetheless have an impairment that prevents or substantially limits their ability to transport themselves to a polling station. Accordingly, the Voter Transportation Ban and Absentee Ballot Organizing Ban violate the First and Fourteenth Amendments to the U.S. Constitution.
PARTIES 6. Plaintiff Priorities USA (“Priorities”) is a 501(c)(4) nonprofit, votercentric progressive advocacy and service organization. Priorities’ mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives. In furtherance of this purpose, Priorities works to help educate, mobilize, and turn out voters across the country, including in Michigan. In 2019 and 2020, Priorities expects to make contributions and expenditures in the millions of dollars to educate, mobilize, and turn out voters in state and federal elections around the country, including millions of dollars to educate, mobilize, and turn out voters in Michigan state and federal elections. Specifically, Priorities, but for the Voter Transportation Ban, would expend resources to fund rides to the polls for Michigan voters. Priorities would also expend resources to fund absentee ballot get-out-the-vote (“GOTV”) activities
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which, but for the Absentee Ballot Organizing Ban, would include the collection of absentee ballot applications in Michigan. Priorities has funded similar GOTV programs in other states in the past.
7. The Voter Transportation Ban and the Absentee Ballot Organizing Ban directly harm Priorities by frustrating its mission of, and efforts in, educating, mobilizing, and turning out voters in Michigan by necessarily reducing the transportation options of Michigan citizens to get to polling places and by criminalizing the acts of individuals and organizations that want to (1) transport individuals to vote and (2) assist voters with registering for or returning absentee ballot applications. Priorities is aware of the Voter Transportation Ban and the Absentee Ballot Organizing Ban and will have to expend and divert additional funds and resources in GOTV efforts—that is, voter education, mobilization, and turnout efforts—in Michigan, at the expense of its efforts in other states and its other efforts in Michigan, to combat the Bans’ effects on Michigan citizens. Priorities will also be prevented from fully exercising its associational rights to engage in these GOTV effort because of the Bans.
8. Defendant Dana Nessel is the Attorney General of the State of Michigan. As the Attorney General, Defendant Nessel is Michigan’s top law enforcement official and responsible for prosecuting the laws of the State of
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Michigan, including the Voter Transportation Ban and the Absentee Ballot Organizing Ban. Defendant Nessel is sued in her official capacity only.
JURISDICTION AND VENUE 9. This action arises under the U.S. Constitution and laws of the United States. Priorities brings this action under the First and Fourteenth Amendments of the U.S. Constitution, which is actionable under 42 U.S.C. § 1983. 10. This Court has original subject-matter jurisdiction of the federal questions presented in this case pursuant to 28 U.S.C. §§ 1331 and 1343. 11. Venue is proper pursuant to 28 U.S.C. §§ 1391(b) and 1391(c) because Attorney General Nessel resides and/or conducts business in the Eastern District of Michigan. 12. Declaratory and injunctive relief is authorized by Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
GENERAL ALLEGATIONS The Voter Transportation Ban 13. The Voter Transportation Ban provides, in its entirety, that “[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.” Mich. Comp. Laws § 168.931(1)(f).
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14. Anyone found guilty of violating the Voter Transportation Ban commits a misdemeanor, id., and faces the prospect of ninety days of imprisonment and a $500 fine, Mich. Comp. Laws § 750.504.
15. The Voter Transportation Ban is in direct conflict with federal regulations that address election-related spending by corporations and labor organizations. These regulations expressly allow organizations to arrange for vehicles to transport voters to the polls or place of registration, which are now oneand-the-same in Michigan. E.g., 11 C.F.R. § 114.4(d)(1) (“A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at . . . the general public. Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration.”). To “provid[e] transportation” to voters and prospective voters, corporations and labor organizations will, in most instances, hire individuals to drive, a violation of the Voter Transportation Ban. Accordingly, the Voter Transportation Ban criminalizes federally sanctioned activities.
16. By eliminating the use of paid drivers, the Voter Transportation Ban necessarily reduces the number of drivers able to transport Michigan citizens to the polls during early voting and on Election Day. See Meyer v. Grant, 486 U.S. 414, 419 (1988) (acknowledging “the available pool of [petition] circulators is necessarily smaller if only volunteers can be used” and paid circulators are banned). The impact
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of the Voter Transportation Ban falls directly on those individuals who lack reliable transportation or suffer physical or mental impairments that make travel to the polls difficult or impossible.
17. The Voter Transportation Ban arbitrarily distinguishes between voters who are disabled. Although the Voter Transportation Ban makes an exception for voters who are disabled such that they cannot walk, it leaves out voters who are able to walk but cannot drive for other reasons. To illustrate, the Voter Transportation Ban makes it a misdemeanor to hire a taxi to take a neighbor to the polls if they suffer from blindness, epilepsy, or other motor control impairments that limit the ability to walk unaided, but it is not a misdemeanor to hire a taxi to take a wheelchairbound neighbor to the polls.
18. Because the Voter Transportation Ban criminalizes transportation “to an election” and registration and voting now take place at the same location and on the same date, organizations like Plaintiff Priorities now face criminal charges for spending money to register voters. The law cannot distinguish between transporting voters to register to vote and transporting voters to vote. Thus, the Voter Transportation Ban burdens Plaintiff Priorities’ core political speech.
19. The Voter Transportation Ban also chills organizational civic engagement. In 2018, the rideshare company Uber, working in conjunction with national organizations #VoteTogether and Democracy Works, provided free and
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discounted rides to polling places for individuals on Election Day. According to an October 24, 2018 press release, Michigan was the only state for which Uber did not offer this promotion. Danielle Burr, Update on Uber Drives the Vote (Oct. 24, 2018), https://www.uber.com/newsroom/update-uber-drives-vote/. Upon information and belief, Uber did not provide Michigan citizens with discounted rides to polling places because of the Voter Transportation Ban.
20. The Voter Transportation Ban criminalizes the actions of citizens who contribute or spend funds to enable their fellow citizens to participate in the civic process. For example, The Detroit Bus Company, a Low Profit Limited Liability company, provided Michigan voters with free rides to the polls during the 2018 election. This project cost about $4,000, and The Detroit Bus Company solicited donations from individuals to finance this project. Under the Voter Transportation Ban, the individuals who made non-tax-deductible donations to The Detroit Bus Company for this project face imprisonment and fines for paying for voters to be transported to the polls. Similarly, other organizations, such as senior centers, nursing homes, churches, labor unions, party organizations, political campaigns, and student groups risk misdemeanor charges for arranging to bring voters to the polls. Even a neighbor who shares a taxi to the polls risks criminal liability for doing so under the Voter Transportation Ban.
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21. There is no compelling justification for the Voter Transportation Ban. To the extent that the Voter Transportation Ban is meant to discourage or criminalize vote buying, that is accomplished through Michigan Compiled Laws § 168.931(b)(i), which makes it a misdemeanor to “receive, agree, or contract for valuable consideration” for “[v]oting or agreeing to vote, or inducing or attempting to induce another to vote, at an election.” To that end, there is no rational basis for the Voter Transportation Ban.
The Absentee Ballot Organizing Ban 22. The Absentee Ballot Organizing Ban is found in Section 168.759, which criminalizes efforts to assist voters with delivering absentee ballot applications in three subsections. Subsection 4 states, “A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official.” Subsections 4 and 5 require a “registered elector requested by the applicant” to certify that they “did not solicit or request to return the application.” And subsection 8 makes it a misdemeanor to make “a false
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statement in an absent voter ballot application” or to return an absentee ballot application without authorization.
23. Together, these provisions prohibit third parties such as neighbors, political campaigns, and voter mobilization organizations from assisting a voter with delivering an absentee ballot application unless (1) the third party is a registered voter and (2) the voter affirmatively requests their assistance. Individuals are banned, under threat of criminal prosecution, from offering assistance. The Absentee Ballot Organizing Ban thus limits the persons who can assist voters in applying for absentee ballots to registered voters and proactively proscribes certain speech.
24. The Absentee Ballot Organizing Ban is particularly troublesome given the recent changes to absentee voting laws in 2018. As a result of Proposition 3, all Michigan citizens are entitled to vote early or by absentee ballot without excuse. Mich. Comp. Laws § 168.759(1), (2). Prior to Proposition 3, Michigan Compiled Laws § 168.758 limited the availability of absentee voting to certain subsets of voters. The Absentee Ballot Organizing Ban, which directly regulates speech by criminalizing offers to assist a voter in returning an absentee ballot application, will have a chilling effect on efforts to educate voters about those benefits.
25. The Absentee Ballot Organizing Ban is not justified by any state interest in preventing voter fraud. As noted above, Section 168.931(b)(i) criminalizes vote buying. Section 168.759(8) makes it a felony to forge a signature
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on an absentee ballot application. And Section 168.932 criminalizes interference with an absentee ballot itself.
CAUSES OF ACTION COUNT I
Declaratory Judgment Declaratory Judgment Act 28 U.S.C. § 2201, 28 U.S.C. § 2202 (Federal Law Supersedes and Preempts the Voter Transportation Ban) 26. Plaintiff hereby incorporates all other paragraphs as if fully set forth herein. 27. Pursuant to 52 U.S.C. § 30143, rules prescribed under to the Federal Election Campaign Act of 1971, as amended, “supersede and preempt any provision of State law with respect to election to Federal office.” 28. Federal Regulation 11 C.F.R. § 114.4 was promulgated pursuant to the Federal Election Campaign Act of 1971, which regulates political campaign spending and fundraising. In relevant part, the regulation permits corporations and labor organizations to spend money to transport members of the general public to the polls through voter registration and get-out-the-vote drives. 29. To the extent the Voter Transportation Ban conflicts with 11 C.F.R. § 114.4, the Attorney General should be enjoined from enforcing it during elections when candidates for federal office are on the ballot. E.g., Republican Party of New Mexico v. King, 850 F. Supp. 2d 1206, 1216 (D.N.M. 2012), aff’d, 741 F.3d 1089
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(10th Cir. 2013) (enjoining enforcement of state campaign spending law with respect to federal office holders).
COUNT II First and Fourteenth Amendment U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C.
§ 2202 (Undue Burden) 30. Plaintiff hereby incorporates all other paragraphs as if fully set forth herein. 31. The Voter Transportation Ban and the Absentee Ballot Organizing Ban, independently and together, constitute an undue burden on voters in violation of the Fourteenth Amendment. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). The Voter Transportation Ban and the Absentee Ballot Organizing Ban each represent a severe burden on Michigan citizens’ ability to vote, especially minority voters, voters who are disabled, seniors, and low-income voters. The Voter Transportation Ban increases the costs of voting by requiring voters to pay the full cost of finding private transportation to the polls. See Veasy v. Abbott, 830 F.3d 216, 263 (5th Cir. 2016) (Higginson, J., joined by Costa, J., concurring). The Absentee Ballot Organizing Ban criminalizes a means through which voters access absentee ballots. It follows, therefore, that the restrictions on rides to the polls and absentee ballot application collection will prevent voters from casting ballots. Accordingly, Michigan is required to justify
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these restrictions with reasons that are “sufficiently weighty to justify the limitation.” Obama for Am. v. Husted, 697 F.3d 423, 433 (6th Cir. 2012) (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)). No such justifications exist.
COUNT III First and Fourteenth Amendments U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202 (Associational and Speech Rights) 32. Plaintiff hereby incorporates all other paragraphs in this Complaint as if fully set forth herein. 33. The Voter Transportation Ban and the Absentee Ballot Organizing Ban, together and individually, also constitute an impermissible infringement on the associational and speech rights of Michigan voters, Plaintiff Priorities, and other organizations and citizens engaged in mobilizing voters. “Political speech is at the core of First Amendment protections.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016). Priorities engages in core political speech when it interacts with Michigan voters to educate them on the issues, persuades them to register to vote, and encourages them to vote. See League of Women Voters v. Hargett, No. 3:19-CV-00385, 2019 WL 4342972, at *8 (M.D. Tenn. Sept. 12, 2019) (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.”) (internal quotation marks and alterations omitted); see also Meyer v. Grant, 486 U.S. 414, 422 (1988) (noting
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that “interactive communication concerning political change” is core political speech).
34. The Voter Transportation Ban and the Absentee Ballot Organizing Ban, together and individually, represent an overbroad restriction on political speech and political organizing that infringes Plaintiff Priorities’ First and Fourteenth Amendment rights and the First and Fourteenth Amendment rights of Michigan voters and other persons and organizations who would otherwise provide free rides to voters or assist voters in delivering absentee ballot applications.
Count IV Fourteenth Amendments U.S. Const. Amend. XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202 (Equal Protection Clause) 35. Plaintiff hereby incorporates all other paragraphs in this Complaint as if fully set forth herein. 36. The Fourteenth Amendment provides, in applicable part, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 37. As applied to voters who are disabled, the Voter Transportation Ban burdens their fundamental right to political speech with respect to registration and voting by reducing their ability to register to vote and to vote, both of which are protected activities.
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38. Facially, the Voter Transportation Ban discriminates against voters who are disabled by being underinclusive. If the purpose of the carveout was to make transportation easier for those who are unable to transport themselves to the polls, it should have included individuals with sight impairments as well as other physical impairments. See Obama for Am. v. Husted, 697 F.3d 423, 435 (6th Cir. 2012).
39. Because the Voter Transportation Ban burdens fundamental voting rights, strict scrutiny applies. Doe v. Rowe, 156 F. Supp. 2d 35, 52 (D. Me. 2001) (applying strict scrutiny because of the fundamental nature of voting rights involved, even though the equal protection challenge involved a disability classification, which is not a suspect classification).
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in their favor and against Defendant, and: a. Declare, under the authority granted to this Court by 28 U.S.C. § 2201,
that (1) Michigan Compiled Laws § 168.931(1)(f) is preempted by federal law; and (2) Michigan Compiled Laws § 168.759(4), (5), and (8) and Michigan Compiled Laws § 168.931(1)(f) violate the First and Fourteenth Amendments to the U.S. Constitution; b. Preliminarily and permanently enjoining the Attorney General and her agents, officers, employees, successors, and all persons acting in
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concert with each or any of them from enforcing Michigan Compiled Laws § 168.759(4), (5), and (8) and Michigan Compiled Laws § 168.931(1)(f); c. Awarding Plaintiff their costs, disbursements, and reasonable attorneys’ fees incurred in bringing this action pursuant to 42 U.S.C. § 1988 and other applicable laws; and d. Grant Plaintiff such other and further relief as the Court deems necessary and proper.
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Respectfully submitted,

Dated: November 12, 2019

By: /s/Sarah S. Prescott

Marc E. Elias* DC Bar No. 442007 Christopher J. Bryant* SC Bar No. 101681 Courtney A. Elgart* MA Bar No. 697106 PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com

Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiff

Kevin J. Hamilton* WA Bar No. 15648 PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com

Attorneys for Plaintiff *Seeking Admission to E.D. Mich.

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 Case 4:19-cv-13341-SDD-RSW ECF No. 10 filed 12/20/19 PageID.34 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA,

No. 19-13341

Plaintiff,

HON. MARK A. GOLDSMITH

v

MAG. R. STEVEN WHALEN

DANA NESSEL, in her official capacity

as the Michigan Attorney General,

DEFENDANT’S

MOTION TO DISMISS

Defendant.

__________________________________/

Sarah S. Prescott (P70510)

Attorney for Plaintiff

105 E. Main St.

Northville, Michigan 48168

248.679.8711

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659
/

DEFENDANT’S MOTION TO DISMISS

Defendant Michigan Attorney General Dana Nessel moves for dismissal of

Plaintiff Priorities USA’s complaint pursuant to Fed. R. Civ. Proc. 12(b)(1) and

(6), for the following reasons:

1

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1. This complaint is a challenge to the constitutionality of several sections of the Michigan Election Law that concern the transportation of voters to elections and who may deliver a signed application for an absent voter ballot. 2. Plaintiff is an organization and does not allege that it has members who vote in Michigan. 3. The complaint does not identify any voters who have experienced any difficulties in transporting themselves to their polling locations or in obtaining and returning an absent voter ballot application due to the existence or operation of the statutes, and does not demonstrate any special relationship between Plaintiff and such unidentified voters that would support third-party standing. 4. Plaintiff has not alleged that it will incur any particularized injury as a result of the challenged statutes. 5. Plaintiff’s claims are instead predicated upon abstract and generalized grievances that are indistinguishable from the interests of any citizen of the State. 6. Plaintiff lacks standing to bring claims challenging the statutes identified in the complaint. 7. Alternatively, Plaintiff’s complaint should be dismissed because Plaintiff fails to state a claim upon which relief may be granted.
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8. Regarding Mich. Comp. Laws § 168.931(1)(f), which prohibits hiring vehicles or other conveyances to transport voters to an election, the statute only minimally burdens a voter’s right to vote or Plaintiff’s right to speech and association. And the burden is outweighed by the State’s interest in preserving the integrity of the conduct of elections. The statute is not unconstitutional. 9. Similarly, in regard to the statutes governing the absent voter ballot application process, see Mich. Comp. Laws § 168.759, the statutes only minimally burden a voter’s right to vote or Plaintiff’s right to speech and association. And the burden is outweighed by the State’s interest in preserving the integrity of the absent voter ballot application process. The statutes are not unconstitutional. 10.Concurrence in the relief sought in this motion was denied.
For these reasons and the reasons stated more fully in the accompanying brief in support, Defendant Attorney General Nessel respectfully requests that this Honorable Court enter an order dismissing Plaintiff’s complaint against her in its entirety and with prejudice, pursuant to Fed. R. Civ. Proc. 12(b)(1) and (6).
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Dated: December 20, 2019

Respectfully submitted,
s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PRIORITIES USA,

No. 19-13341

Plaintiff,

HON. MARK A. GOLDSMITH

v

MAG. R. STEVEN WHALEN

DANA NESSEL, in her official capacity as the Michigan Attorney General,
Defendant. __________________________________/ Sarah S. Prescott (P70510) Attorney for Plaintiff 105 E. Main St. Northville, Michigan 48168 248.679.8711

BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659
/

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

Dated: December 20, 2019

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659

Case 4:19-cv-13341-SDD-RSW ECF No. 10 filed 12/20/19 PageID.39 Page 6 of 45
TABLE OF CONTENTS
Page
Table of Contents ....................................................................................................... i
Index of Authorities ................................................................................................. iii
Concise Statement of Issue Presented ..................................................................... vi
Controlling or Most Appropriate Authority............................................................ vii
Statement of Facts......................................................................................................1
A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications ............................................................................................ 1
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections........6
Argument.................................................................................................................... 7
I. Plaintiff’s complaint should be dismissed where it lacks standing to sue and the complaint otherwise fails to state a claim upon which relief may be granted. ......................................................................................7
A. Plaintiff lacks standing to sue because it has not plead a sufficient injury-in-fact and cannot sue in a representational capacity. ................................................................................................. 7
1. Plaintiff has not sufficiently alleged an injury-in-fact................8
2. Plaintiff lacks standing to sue in a representational capacity. ....................................................................................13
B. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Absentee Ballot Organizing Plan.” ...................................................................................................15
1. The statutes only minimally burden the right to vote and are supported by important regulatory interests. ......................18
2. The statutes only minimally burden the right to speech and association. .........................................................................22
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C. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Voter Transportation Ban.” ...............24 1. The statute is not preempted. ....................................................26 2. The statute only minimally burdens the right to vote and is supported by important regulatory interests..........................28 3. The statute only minimally burdens the right to speech and association. .........................................................................30 4. The statute does not violate the Equal Protection Clause.........30
Conclusion and Relief Requested ............................................................................32 Certificate of Service ...............................................................................................33
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INDEX OF AUTHORITIES Page
Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................ 17, 21, 29 Anthony v. Michigan, 35 F. Supp. 2d 989 (E.D. Mich. 1999) ........................ 8, 9, 12 Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970) ....................13 Barrows v. Jackson, 346 U.S. 249 (1953) ...............................................................14 Burdick v. Takushi, 504 U.S. 428 (1992).......................................................... 16, 17 Burson v Freeman, 504 U.S. 191 (1992).................................................................29 City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007) ........................................13 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .............................................7, 8 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)..................................16 Dudewicz v. Norris-Schmid, Inc., 503 N.W.2d 645 (1993).....................................31 Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228
(1989) .................................................................................................................... 29 Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) ...................................8 Feldman v. Arizona Sec of State’s Office, 840 F.3d 1057 (9th Cir. 2016) ....... 23, 30 Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88 (1992) ..................................27 Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d
710 (6th Cir. 1995) ...............................................................................................11 Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533 (6th Cir. 2014) ...........18 Green Party of Tenn. v. Hargett (Hargett II), 791 F.3d 684 (6th Cir. 2015) ..........17 Kowalski v. Tesmer, 543 U.S. 125 (2004) ........................................................ 14, 15 Lance v. Coffman, 549 U.S. 437 (2007) ..................................................................12
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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................... 7, 8, 12 Marie v. Am. Red Cross, 771 F.3d 344 (6th Cir. 2014)...........................................32 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).........................................21 Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir.
2016) ........................................................................................................ 11, 20, 28 Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) .................................32 Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016) .........17 Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) .................... 17, 18 Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................21 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) 23, 30 Ryan v. City of Detroit, 174 F.Supp 3d 964 (E.D. Mich 2016) ...............................32 Sheldon v. Grimes¸18 F. Supp. 3d 854 (ED Ky., 2014) ..........................................29 Singleton v. Wulff, 428 U.S. 106 (1976) ..................................................................14 Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011).........13 Storer v. Brown, 415 U.S. 724 (1974) .....................................................................16 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)......................................8, 9 Tech & Crystal, Inc v. Volkswagen of Am, Inc., 2008 WL 2357643, at *3
(Mich. Ct. App., June 10, 2008)...........................................................................25 U.S. v Swisher, 811 F.3d 299 (9th Cir. 2016) ..........................................................23 United States v. O’Brien, 391 U.S. 367 (1968) .......................................................22 Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State (Valley Forge), 454 U.S. 464 (1982) ..........................................................13 Voting for Am v. Steen, 732 F.3d 382 (5th Cir., 2013) ............................................23 Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)..................................................10
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Statutes Mich. Comp. Laws § 168.759(8) ...............................................................................5 Mich. Comp. Laws § 168.2(g) .................................................................................25 Mich. Comp. Laws § 168.759.......................................................................... passim Mich. Comp. Laws § 168.931.......................................................................... passim Mich. Comp. Laws § 169.201..................................................................................26 Mich. Comp. Laws § 169.206(1)(c).........................................................................26 Mich. Comp. Laws § 169.206(2)(f) .........................................................................26 Mich. Comp. Laws § 8.3a ........................................................................................25 Mich. Comp. Laws § 8.3l.........................................................................................25 Mich. Comp. Laws § 168.759.......................................................................... passim Mich. Comp. Laws § 168.931(1)(b) ................................................................ passim Constitutional Provisions Mich. Const. 1963, art 2, § 4(2)...............................................................................21 Mich. Const. 1963, art. 2, § 4(1)(g) ...........................................................................2 Mich. Const. 1963, art. 2, §4(2)...............................................................................29 U.S. Const., Art. III, § 2.............................................................................................7
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CONCISE STATEMENT OF ISSUE PRESENTED 1. Whether Priorities USA’s complaint should be dismissed because it
lacks standing to challenge Michigan’s Election Laws restricting the transportation of voters and prescribing the absent voter ballot application process, or alternatively because the complaint fails to state a claim as to the unconstitutionality of these statutes?
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.931(1)(f) Mich. Comp. Laws § 168.759(4), (5), (6), (7), and (8) Mich. Const. 1963, art. 2, § 4
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STATEMENT OF FACTS The only named Plaintiff to this action is Priorities USA, a 501(c)(4) nonprofit corporation and a “voter-centric progressive advocacy and service organization.” (R. 1, Compl., PgID 4, ¶ 6.) Its “mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives.” (Id.) It alleges that it engages in activity to “educate, mobilize, and turn out voters” in Michigan, and states that it “expects to” make expenditures and contributions towards those objectives in upcoming Michigan state and federal elections. (Id.) Plaintiff has not alleged that it is incorporated in Michigan, or that it has any members, much less members that reside or vote in Michigan. Plaintiff challenges several parts of Michigan’s Election Law that limit who may deliver a signed application for an absent voter ballot to a local clerk, in addition to a prohibition on paying for the transportation of voters to elections. A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications As amended by Proposal 3 in 2018, article 2, § 4 of the Michigan Constitution now provides that qualified electors shall have “[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
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is applied for, received and submitted in person or by mail.” Mich. Const. 1963,
art. 2, § 4(1)(g). Section 4 continues to provide, as it has since 1963, that:
[T]he legislature shall 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. [Id., art. 2, § 4(2)(emphasis added).] Section 759 of the Michigan Election Law prescribes the process for
applying for an absent voter (AV) ballot. In order to receive an AV ballot, a voter
must request an application for an AV ballot and submit that application to his or
her local clerk. With respect to both primaries and regular elections, an elector
may apply for an AV ballot at any time during the 75 days before the primary or
election. Mich. Comp. Laws § 168.759(1)-(2). In both cases, “the elector shall
apply in person or by mail with the clerk” of the township or city in which the
elector is registered. Id. Subsection 759(3) provides that:
(3) An application for an absent voter ballot under this section may be made in any of the following ways: (a) By a written request signed by the voter. (b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.[1] (c) On a federal postcard application. (4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an
1 AV ballot applications are available online at https://www.michigan.gov/documents/sos/ AVApp_535884_7.pdf.
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applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.
(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request. [M.C.L. §§ 168.759(3)-(5) (emphasis added).]
Where a form application is used, under § 759(5), the “application shall be
in substantially the following form,” which then provides the body of the form and
includes a general “warning” and a “certificate” portion for “a registered elector”
delivering a completed application for a voter. Mich. Comp. Laws § 168.759(5).
The warning must state that:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk’s office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk's authorization to return your application. [Id.]
Similarly, the certificate for a registered elector returning an AV ballot
application must state that:
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I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. [Id.]
Under § 759(6), the application form must include the following instructions
for an applicant:
Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application. [M.C.L. § 168.759(6).]
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
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assistant of the clerk is guilty of a misdemeanor.” Mich. Comp Laws § 168.759(8) (emphasis added). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931(1)(b)(iv) and (1)(n).
Based on these provisions, there are two ways to apply for an AV ballot; (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning their written request or form application to their local clerk in person or by mail. Mich. Comp. Laws §§ 168.759(1), (2), (6). Clerks have also been instructed by the Department of State for a number of years to accept applications sent by facsimile and email.2 If a voter cannot appear in person to deliver their application or cannot mail their application or return it by email or facsimile, they may have an immediate family member deliver his or her application, or the person may request another registered voter to return the application. Mich. Comp. Laws §§ 168.759(4), (5), (6).
Thus, only persons authorized by law, i.e. those described in § 759(4), may return a signed application for an AV ballot to a local clerk. Mich. Comp. Laws §§
2 See, e.g., Chapter 6, Michigan’s Absentee Voting Process, February 2019, p 2, available at https://www.michigan.gov/documents/sos/VI_Michigans _Absentee_Voting_Process_265992_7.pdf.
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168.759(4)-(5). Defendant is not aware of any recent prosecutions under these provisions for the return of AV ballot applications.
Plaintiff refers to these statutes as an “Absentee Ballot Organizing Ban,” and alleges that it would “expend resources to fund absentee ballot get-out-the-vote (‘GOTV’) activities which, but for” the ban “would include the collection of absentee ballot applications in Michigan.” (R. 1, Compl., PgID 5, ¶ 6).
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections Mich. Comp. Laws § 168.931 provides, in part: (1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:
* * * (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. [Mich. Comp. Laws § 168.931(1)(f).] Under this provision, a person cannot pay for the transportation of a voter to the polls unless the voter is physically unable to walk to the election. 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.” Given its age, it is possible that people have been prosecuted under this statute, but Defendant has been unsuccessful in finding any cases involving a prosecution under § 931(1)(f).
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Priorities USA refers to § 931(1)(f) as a “Voter Transportation Ban,” and alleges that “but for” the ban it “would expend resources to fund rides to the polls for Michigan voters.” (R. 1, Compl., PgID 4, ¶ 6).
ARGUMENT I. Plaintiff’s complaint should be dismissed where it lacks standing to sue
and the complaint otherwise fails to state a claim upon which relief may be granted. A. Plaintiff lacks standing to sue because it has not plead a sufficient
injury-in-fact and cannot sue in a representational capacity. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const., Art. III, § 2. The doctrine of standing implements these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–561 (internal quotation marks omitted). “ ‘The party invoking federal jurisdiction bears the burden of establishing’ standing.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-412 (2013) (internal citation omitted).
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In order to establish organizational standing, a plaintiff organization, like
Priorities USA, must establish the three traditional elements of standing. See Fair
Elections Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014). Here, Plaintiff has
not sufficiently pled an injury-in-fact to support standing.
1. Plaintiff has not sufficiently alleged an injury-in-fact. An injury sufficient to satisfy Article III must be “concrete and
particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ”
Lujan, 504 U.S. at 560 (some internal question marks omitted). “An allegation of
future injury may suffice if the threatened injury is ‘certainly impending,’ or there
is a ‘ “substantial risk’ that the harm will occur.’ ” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 409, 414, n. 5)
(emphasis deleted and internal quotation marks omitted) (emphasis added).
Overlaying this analysis is the question of “when the threatened enforcement
of a law creates an Article III injury.” Susan B. Anthony, 573 U.S. at 158. On this
point, the U.S. Supreme Court observed that an actual arrest or prosecution is not
required, but enforcement must be imminent and the threat credible:
When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
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credible threat of prosecution thereunder.” [Id. at 158-59 (internal citations omitted) (emphasis added).] Thus, to establish injury-in-fact in a pre-enforcement case, as here, Plaintiff must demonstrate that enforcement of the challenged statutes is “sufficiently imminent,” which it can do by demonstrating that there is a “credible threat of prosecution” under the statutes. But here, Priorities USA fails to make allegations demonstrating a credible threat of prosecution. Instead, Plaintiff alleges only that the Voter Transportation Ban and the Absentee Ballot Organizing Ban will “directly harm Priorities by frustrating its mission of, and efforts in, educating, mobilizing, and turning out voters in Michigan by necessarily reducing the transportation options of Michigan citizens to get to polling places and by criminalizing the acts of individuals and organizations” that want to transport people to vote and assist voters “with registering for or returning absentee ballot applications.” (R. 1, Compl., PgID 5, ¶ 7). Plaintiff alleges that because of these so-called Bans, it “will have to expend and divert additional funds and resources in GOTV efforts” in Michigan, and it “will also be prevented from fully exercising its associational rights to engage in these GOTV effort because of the Bans.” Id. But these alleged future injuries are not “certainly impending” nor does there appear to be a “substantial risk” that harm will occur. Susan B. Anthony List, 573 U.S. at 158. The complaint is devoid of any reference to recent prosecutions or
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threatened prosecutions under § 931(1)(f) or under §§ 759(8), 931(1)(b)(iv), (n). The only specific instance Plaintiff points to is a press release from Uber stating that it was not offering discounted rides to the polls in Michigan for the November 2018 general election. (R. 1, Compl., PgID 9, ¶ 19). Plaintiff alleges that “[u]pon information and belief, Uber did not provide Michigan citizens with discounted rides to polling places because of the Voter Transportation Ban.” (Id.) However, there is no allegation that Uber was threatened with prosecution under § 931(1)(f) in 2018.
Plaintiff has not alleged facts sufficient to support a “credible threat of prosecution” under any of the statutes discussed above. See, e.g., Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (finding credible threat of enforcement where agency letter contained valid threat of enforcement). As a result, Plaintiff has not sufficiently pled an injury-in-fact and thus lacks standing to bring its claims.
Further, to the extent Plaintiff alleges it will have to “divert” resources to combat the effects of these statutes, (R. 1, Compl., PgID 5, ¶ 7), this allegation also fails to show an injury-in-fact. The Sixth Circuit has previously rejected the “diversion of resources” theory in similar cases. In Fair Elections Ohio, 770 F.3d at 458, an organization conducting voter outreach sought to challenge a deadline for requesting an absent voter ballot on the theory that it prevented people jailed
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after the deadline and held through election day from exercising their right to vote. The Sixth Circuit held that the organization did not have standing because the organization had not shown an injury in fact. Id. at 459. The Court held that the organization had only an, “abstract social interest in maximizing voter turnout,” and that such abstract interests cannot confer Article III standing. Id. at 461 (citing Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 716-17 (6th Cir. 1995)). Moreover, Plaintiff’s First Amendment and equal protection claims are primarily based on alleged injuries to individual voters and are untethered to its alleged injury of having to divert its resources.
On the other hand, the Sixth Circuit also addressed the “diversion of resources” theory in Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016), where it found that the organization plaintiff had standing, but only because it had immediate plans to revise its voter education program to adapt to a recent change in law, and that a favorable decision enjoining the new laws would redress that injury. But that case is distinguishable from the situation Plaintiff faces here, because there have been no recent changes in the law. Rather, these are long-existing laws. Just as in Fair Elections Ohio, Plaintiff’s injury is premised upon the rejected argument that it has standing “merely by virtue of its efforts and expense to advise others how to comport with the law, or by virtue of its efforts and expense to change the law.” 770 F.3d at 460.
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Further, Plaintiff also does not allege that it is comprised of members that include any Michigan voters, and it also does not sufficiently allege how it, as an institution, has been injured by the challenged provisions. Lujan, 504 U.S. at 56061. In short, Plaintiff does not allege how the Bans have injured it in a manner that could be distinguishable from an alleged hypothetical harm incurred by any actual voter within the State.
To the contrary, Plaintiff raises only general grievances regarding what may occur to unidentified voters at some future time. Priorities USA’s claims are similar to those considered and easily rejected by the Supreme Court, the Sixth Circuit, and this Court. See, e.g., Lance v. Coffman, 549 U.S. 437, 441 (2007) (“[S]tanding to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” (quotation omitted)); Miyazawa v. City of Cincinnati, 45 F.3d 126, 126-28 (6th Cir. 1995) (no standing for resident challenging city charter amendment when she had “suffered no harm, nor will she suffer any greater harm than that of any other voter in the City of Cincinnati”); Anthony v. Michigan, 35 F. Supp. 2d 989, 1003 (E.D. Mich. 1999) (no standing for Detroit citizens challenging consolidation of Detroit Recorder’s Court because plaintiffs did not “articulate how they [were] particularly harmed as a result of the merger”) (emphasis in original).
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Plaintiff simply has no standing to raise any claims challenging the statutes at issue, and so the Complaint must be dismissed.
2. Plaintiff lacks standing to sue in a representational capacity. Plaintiff appears to be attempting to invoke the rights of unidentified thirdparty individuals who are not a party to this suit. But, even in a representational capacity, Plaintiff must still meet the prudential requirements for standing developed by the Supreme Court. Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State (Valley Forge), 454 U.S. 464, 474 (1982)). First, a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Valley Forge, 454 U.S. at 474 (internal quotation marks and citation omitted). Second, a plaintiff must present a claim that is “more than a generalized grievance.” City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007) (internal quotation marks omitted). Finally, the complaint must “fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Valley Forge, 454 U.S. at 475 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). “[E]ven when litigants have established a substantial injury from a government action, they ‘cannot challenge its constitutionality unless [they] can show that [they are] within the class whose
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constitutional rights are allegedly infringed.’” Smith, 641 F.3d at 207 (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953)).
Here, Plaintiff is attempting to advance the legal rights of others, i.e. voters and other organizations who purportedly may be affected by the Voter Transportation Ban and the Absentee Ballot Organizing Plan. In this respect, Plaintiff has no particularized injury, and its constitutional rights are not affected by the challenged statutes.
It is true, however, that the Supreme Court has observed that its salutary rule against third-party standing is not absolute. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). The rule “should not be applied where its underlying justifications are absent.” Singleton v. Wulff, 428 U.S. 106, 114 (1976). In deciding when not to apply this rule, the Supreme Court has considered “two factual elements”:
The first is the relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right’s enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Singleton, 428 U.S. at 114-15. “Elsewhere, the [Supreme] Court has described this test as requiring that ‘the party asserting the right has a ‘close’ relationship with the person who possesses the right,’ and that there is a ‘hindrance’ to the possessor’s
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ability to protect his own interests.’” Smith, 641 F.3d at 208 (citing Kowalski, 543 U.S. at 130).
But in this case, Plaintiff has neither alleged any “special relationship” to any person who might raise a claim that his or her rights have been violated by the Voter Transportation Ban or the Absentee Ballot Organizing Plan, nor identified any person by name. Moreover, there is no indication that such individuals are incapable of asserting their own rights. The underlying justifications against thirdparty standing thus apply, and Plaintiff lacks the requisite standing to bring claims based on injuries to third-parties.
Just as the Sixth Circuit observed in Fair Elections Ohio, 770 F.3d at 461, “[t]he plaintiffs are organizations and cannot vote; instead they assert the right to vote of individuals not even presently identifiable.” The Sixth Circuit rejected the exceptions to the rule against third party standing, finding that none applied. Id. There, just as here, the relationship between the plaintiff organization and the persons whom it seeks to help—unidentified, future voters—does not resemble the close relationship of the lawyer-client or doctor-patient relationships recognized by the Supreme Court. (Id.)
B. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Absentee Ballot Organizing Plan.”
Plaintiff alleges that the “Absentee Ballot Organizing Plan” statutes violate the First and Fourteenth Amendments because (1) the statutes severely burden the
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right to vote, (R. 1, Compl., Count II, PgID 13-14), and (2) because they impermissibly infringe on Plaintiff’s speech and associational rights, (Id., Count III, PgID 14-15). But Plaintiff’s allegations are without merit since the statutes, at best, only minimally burden the right to vote or to speak and associate and are supported by important regulatory interests.
The “right to vote in any manner . . . [is not] absolute,” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted); the Constitution recognizes the states’ clear prerogative to prescribe time, place, and manner restrictions for holding elections. U.S. Const. art. I, § 4, cl. 1. Indeed, there “must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Federal law thus generally defers to the states’ authority to regulate the right to vote. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203-04 (2008) (Stevens, J., op.) (recognizing that neutral, nondiscriminatory regulation will not be lightly struck down, despite partisan motivations in some lawmakers, so as to avoid frustrating the intent of the people’s elected representatives).
When a constitutional challenge to an election regulation requires courts to resolve a dispute concerning these competing interests, courts apply the Anderson-
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Burdick analysis from Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, supra, which requires the following considerations:
[T]he court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. Finally, it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Green Party of Tenn. v. Hargett (Hargett II), 791 F.3d 684, 693 (6th Cir. 2015)(internal quotation marks and citations omitted). “Though the touchstone of Anderson-Burdick is its flexibility in weighing competing interests, the ‘rigorousness of [the court’s] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.’ ” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Burdick, 504 U.S. at 434). If a state imposes “severe restrictions” on a plaintiff’s constitutional right to vote, its regulations survive only if “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434. But “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 of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016) (citing Green Party of Tenn. v.
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Hargett (Hargett I), 767 F.3d 533, 546 (6th Cir. 2014), and quoting Burdick, 504 U.S. at 434). Regulations falling somewhere in between—“i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a ‘flexible’ analysis, ‘weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’ ” Ohio Democratic Party, 834 F.3d at 627 (quoting Hargett I, 767 F.3d at 546).
1. The statutes only minimally burden the right to vote and are supported by important regulatory interests.
Plaintiff grounds the burden to voters in the fact that “third parties” cannot assist a voter by delivering a voter’s AV ballot application to the local clerk unless the third party is a registered voter and the voter affirmatively requests the third party’s assistance. (R. 1, Compl., PgID 11, ¶ 23). This is a correct statement of the law. But let’s recount the numerous ways voters can return their written requests or form applications to the local clerk; (1) in person, (2) by US mail or some other mail service, (3) by email, (4) by facsimile, (5) through in-person, mail, or other delivery by an immediate family member, which includes in-laws and grandchildren, (6) through in-person, mail, or other delivery by a person residing in the household with the voter, and (7) if none of those methods are available, through in-person, mail, or other delivery “by any registered elector.” Mich. Comp. Laws §§ 168.759(4)-(6).
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There are six methods of delivery a voter may utilize before even getting to the “registered elector” option. And even then, the “registered elector” option does not burden voters. A voter can ask any registered elector in Michigan to deliver or return his or her application. If there is any burden it inures to the registered elector who may wish to assist a voter by delivering his or her application. This is because, as Plaintiff notes, the registered elector cannot solicit or request to deliver the application. Mich. Comp. Laws § 168.759(5). Rather, the voter must ask or request the registered elector to do so. But the law does not prohibit a registered elector from simply reading to, or giving a basic explanation of, the statutorily required instructions as to methods of delivery to a voter. If after doing so the voter requests that the registered elector return his or her form, and the registered elector completes the certificate, there is no violation of the law.
Thus, if Plaintiff wants to engage in GOTV activities in Michigan that include handing out blank AV ballot applications, Plaintiff can staff the event with Michigan registered electors who can read the instructions regarding delivery to the voters, and staff can deliver forms for the voters if the voters thereafter ask staff to do so, and staff completes the certificate.
The burden on the right to vote itself here is non-existent, or at most, minimal. Indeed, Plaintiff has not identified or alleged one single instance where any voter – elderly, a minority, economically disadvantaged or otherwise – was
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disenfranchised because he or she was unable to deliver his or her AV ballot application. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016) (determining it is error for a court to weigh “the burden that the challenged provisions uniquely place” on a subgroup of voters in he absence of “quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [those provisions].” While the “registered elector” option for delivery is slightly more involved than the other third-party options, e.g., delivery by family or a person residing in the household, there is a rational reason for this difference. With family members or persons in the household, the State assumes a relationship of trust or accountability between the voter and these third parties where the voter can be assured that his or her application has been properly delivered and can readily inquire as to that fact. And the State will assume, based on these relationships, that the application delivered to the local clerk was properly completed and delivered. In other words, that the identified voter does, in fact, wish to receive and vote an AV ballot.
Outside these relationships, the elements of trust and accountability are or may be reduced. For instance, if a voter attends a GOTV event sponsored by Plaintiff, the “registered elector” with whom a voter interacts may be a complete stranger. In that instance, the State requires more caution. It should be the voter
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who decides to entrust a stranger with delivering his or her application. And the State is less trusting as well, requiring that stranger to complete the certificate on the application form identifying himself or herself. That way if there are questions about the application, the local clerk can contact the voter or the registered elector.
Balanced against these minimally burdensome steps is the State’s important regulatory interest in protecting the integrity and security of the AV ballot process. Michigan’s Constitution expressly provides that the Legislature “shall enact laws . . . to preserve the purity of elections,” and to “guard against abuses of the elective franchise[.]” Mich. Const. 1963, art 2, § 4(2). The U.S. Supreme Court has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson 460 U.S. at 788, n. 9 (1983). In other words, it has recognized that a State has a compelling interest in ensuring that an individual’s right to vote is not undermined by fraud in the election process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”). And the Supreme Court has held that legislatures are permitted to respond to potential deficiencies in the electoral process with “foresight” rather than “reactively.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986).
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Here, the requirements with respect to delivery by a “registered elector” protect both the voter and the process by helping to ensure that the voter’s application is properly delivered, and that the voter identified on an application for an AV ballot does in fact wish to obtain and vote by AV ballot. The very minimal burden created by the requirements, even for elderly or economically disadvantaged voters, is outweighed by the State’s important interest in protecting the integrity of the AV ballot process. Plaintiff has thus failed to state a claim in Count II as to unconstitutionality of these statutes.
2. The statutes only minimally burden the right to speech and association.
Plaintiff argues that the AV ballot application statutes burden its speech and associational rights. Plaintiff argues that it “engages in core political speech when it interacts with Michigan voters to educate them on the issues, persuades them to register to vote, and encourages them to vote.” (R. 1, Compl., PgID 14, ¶ 33). That may be true, but that is not what is at issue here. Plaintiff seeks to assist voters by delivering their AV ballot applications to their local clerk. This act, however, is not speech.
The U.S. Supreme Court has held that conduct is not “speech” whenever the person engaging in the conduct intends thereby to express an idea. See United States v. O’Brien, 391 U.S. 367, 376 (1968). Courts have held, for example, that ballot collecting is not presumptively expressive, Feldman v. Arizona Sec of State’s
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Office, 840 F.3d 1057 (9th Cir. 2016), en banc decision on other grounds, 843 F3d 366 (2016), because unlike burning an American flag or wearing a military medial, which “would reasonably be understood by the viewer to be communicative,” U.S. v Swisher, 811 F.3d 299, 311 (9th Cir. 2016) (internal citation omitted), ballot collection does not convey that type of expressive message. Indeed, ballot collecting does not acquire First Amendment protection just because it is carried out along with protected activities and speech. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (concluding that “combining speech and conduct” is not enough to create expressive conduct); Voting for Am v. Steen, 732 F.3d 382, 389 (5th Cir., 2013) (“The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech.”). Delivering AV ballot applications arguably falls into this category and is therefore not speech protected by the First Amendment.
But even if it was, as discussed above, any burden imposed by the AV ballot application statutes on Plaintiff is minimal and outweighed by the State’s interest in preserving the integrity of the AV ballot application process. Moreover, Plaintiff may assist voters by delivering their AV ballot applications, as long as the voters request Plaintiff’s assistance. Plaintiff has thus failed to state a claim in Count III as to unconstitutionality of these statutes.
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C. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Voter Transportation Ban.”
Plaintiff argues that Mich. Comp. Laws § 168.931(1)(f) is preempted, as to
federal elections, by 11 C.F.R. § 114.4, and that it is otherwise unconstitutional
under the First and Fourteenth Amendments.
This statute was originally enacted by 1895 P.A. 135, which provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any primary conducted hereunder, or who shall solicit any person to cast an unlawful vote at any primary, or who shall offer to any voter any money or reward of any kind, or shall treat any voter or furnish any entertainment for the purpose of securing such voter’s vote, support, or attendance at such primary or convention, or shall cause the same to be done, shall be deemed guilty of a misdemeanor.
By 1929, the additional language in the provision had been placed
elsewhere, and it simply provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any election or primary election conducted hereunder shall be deemed guilty of a misdemeanor. [M.C.L. 1929, § 3298.]
And finally, it was amended3 to its current version:
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. [Mich. Comp. Laws § 168.931(1)(f) (emphasis added)].
3 See1982 P.A. 201 and 1995 P.A. 261. 24

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The Michigan Election Law does not define “person.” But Mich. Comp. Laws § 8.3l 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.” But 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 of Am, Inc., 2008 WL 2357643, at *3 (Mich. Ct. App., June 10, 2008), quoting Random House Webster’s College Dictionary (1997). However, it does define “[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 nominate by ballot an individual for public office or decide a ballot question lawfully submitted to them.” Mich. Comp. Laws § 168.2(g).
Under this provision, a person cannot engage the service of a vehicle for payment to transport a voter to an election unless the voter is physically unable to walk to the election. The statute does not otherwise prohibit a person from paying for expenses incurred in transporting a voter by vehicle so long as it does not
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amount to hiring for the service.4 And it does not prohibit a person from providing
a voter with free transportation to an election.
1. The statute is not preempted. Plaintiff alleges that the statute is preempted by 11 C.F.R. § 114.4 and that
Defendant should be enjoined from enforcing it with respect to federal elections.
(R. 1, Compl., PgID 12, ¶¶ 27-29). Although Plaintiff is not specific as to the type
of preemption, based on the text of both the federal and state provisions, it is
assumed that Plaintiff is alleging conflict preemption. But there is no conflict
between 11 C.F.R. § 114.4 and § 931(1)(f), and therefore, no preemption.
11 C.F.R. § 114.4(d)(1) provides: Voter registration and get-out-the-vote drives permitted. A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at employees outside its restricted class and the general public. Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration. [Emphasis added.]
4 Such expenses, however, may have to be reported. Michigan’s Campaign Finance Act, Mich. Comp. Laws § 169.201 et seq., includes within the definition of a reportable “expenditure” an “expenditure made for . . . transporting voters to the polls,” Mich. Comp. Laws § 169.206(1)(c), unless it is “[a]n expenditure for . . . nonpartisan get-out-the-vote activities made by an organization that is exempt from federal income tax under section 501(c)(3) of the internal revenue code, 26 USC 501[.]” Mich. Comp. Laws § 169.206(2)(f). Plaintiff is not entitled to the exemption because it is a 501(c)(4) corporation.
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The federal statute does not define the word provid[ing], but the American Heritage Dictionary defines it as 1. To furnish; supply. 2. To make ready; prepare. 3. To make available; afford. American Heritage Dictionary (2nd Ed, 1982).
Even as to state elections where there is a federal candidate on the ballot, § 931(1)(f) does not conflict with 11 C.F.R. § 114.4. Conflict preemption occurs where compliance with both a federal and state regulation is physically impossible, or “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992). The federal provision allows Plaintiff to provide transportation to the polls. Consonant with that, the state provision allows Plaintiff to itself provide transportation to the polls. It can utilize its employees or rally volunteers. It simply cannot “hire” or pay a person or entity to transport voters to the polls, unless the voters are physically unable to walk to the polls. Plaintiff argues that in most instances, organizations will “hire individuals to drive.” (R. 1, Compl, PgID 7, ¶ 15.) But the federal statute does not guarantee Plaintiff the right to “hire” or pay a person or entity to transport voters, only the opportunity to “provide” transportation. And because the challenged state statute allows Plaintiff to “provide” transportation to the polls, there is no conflict preemption. Plaintiff fails to state a claim as to Count I.
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2. The statute only minimally burdens the right to vote and is supported by important regulatory interests.
Plaintiff argues that § 931(1)(f) severely burdens the right to vote because by prohibiting paid drivers the statute reduces the number of drivers able to transport voters, particularly elderly and minority voters, to the polls for an election.
But § 931(1)(f) does not severely burden the right to vote. Surely if this was true Plaintiff could identify at least one instance in which a voter was disenfranchised because he or she was unable to obtain transportation to the polls. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016). Notably, as a result of the passage of Proposal 3 in 2018, all qualified electors have “[t]he right, once registered, to vote an absent voter ballot without giving a reason[.]” Mich. Const. 1963, art. 4, § 1(g). Once registered, all voters can vote an AV ballot at all future elections. And the process for obtaining an AV ballot is simple, as discussed above. Voters who do not have or cannot obtain transportation to an election can avail themselves of the AV ballot process.
And if a voter cannot vote an AV ballot for some reason, he or she can still receive free transportation from family, friends, or volunteers of organizations such as churches, labor organizations, and party organizations, or numerous other organizations or entities, including Plaintiff. Indeed, this case is principally about transporting physically able voters to the polls. Under the plain language of § 931(1)(f), Plaintiff may provide these voters with free rides to an election or it may
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assist voters in obtaining free rides to an election. Moreover, Plaintiff can incentivize volunteer drivers by offering to cover their expenses, such as the cost of gas. Ultimately, any secondary burden on voters, who are not the target of § 931(1)(f), is minimal.
Balanced against these minimal burdens is the State’s interest in preserving the integrity of its elections. See Mich. Const. 1963, art. 2, §4(2); Anderson, 460 U.S. at 788, n. 9. As is plain from the original language of § 931(1)(f), and is true today, the purpose of the prohibition is to protect voters against undue influence. Or more specifically, it is to prevent “quid pro quo” arrangements that may occur when money is exchanged and voters might perceive that they are being offered something of value in exchange for a vote in favor of the candidates or proposals supported by the individual or organization who hired the transportation. This is an important, if not compelling, State interest and Plaintiff has not sufficiently alleged that the State’s interest does not outweigh the minimal burden on voting rights. See Burson v Freeman, 504 U.S. 191, 199 (1992) (citing Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228, 229 (1989) (explaining that a State has a compelling interest in protecting voters from undue influence); Sheldon v. Grimes¸18 F. Supp. 3d 854 (ED Ky., 2014) (state’s interest in protecting absentee voters from undue influence weighed against granting
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injunction). Plaintiff thus fails to state a claim in Count II as to the unconstitutionality of § 931(1(f).
3. The statute only minimally burdens the right to speech and association.
Plaintiff argues that § 931(1)(f) impermissibly infringes on its speech and associational rights. (R. 1, Compl., PgID 14-15, ¶33). But driving a voter to an election or arranging for the voter to be driven to an election, like the delivery of AV ballot applications, is not speech. See, e.g., O’Brien, 391 U.S. at 376; Feldman, 840 F.3d 1057; Rumsfeld, 547 U.S. at 66; Voting for Am, 732 F.3d at 389. But even if it was, as explained above, any burden imposed by § 931(1)(f) on Plaintiff is minimal and outweighed by the State’s important interest in protecting voters from undue influence, which helps preserve the integrity of Michigan’s elections. Plaintiff thus fails to state a claim in Count III as to the unconstitutionality of § 931(1(f).
4. The statute does not violate the Equal Protection Clause. Plaintiff alleges § 931(1)(f), “[a]s applied to voters who are disabled . . . burdens their fundamental right” to vote by “reducing” their opportunity to do so. (R. 1, Compl., PgID 15, ¶ 37). Plaintiff alleges that the statute discriminates on its face against voters who are disabled because it is a carve-out that is “underinclusive.” (R. 1, Compl., PgID 16, ¶ 38.) Plaintiff alleges that it “should have included individuals with sight impairments as well as other physical
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impairments,” (id.), and because it does not, it burdens fundamental voting rights (id. at § 39). But Plaintiff’s interpretation of the statute is overly narrow and not supported by its text.
Subsection 931(1)(f)’s prohibition on hiring transportation does not apply to voters “physically unable to walk [ ] to an election.” Mich. Comp. Laws § 168.931(1)(f). The statute does not define the term “physically.” But giving it its plain and ordinary meaning, see Mich. Comp. Laws 8.3a, it can be understood to mean “in respect to the body.” The American College Dictionary (1961). Thus, § 931(1)(f) permits paying for transporting voters who cannot walk themselves to an election due to some disability or impairment, whether temporary or permanent, of their “body.” This is exception is broad, and as the remedial portion of the statute, it should be liberally construed. See, e.g, Dudewicz v. Norris-Schmid, Inc., 503 N.W.2d 645 (1993) (Remedial statutes are to be liberally construed in favor of the persons intended to be benefited.). Contrary to Plaintiff’s suggestion, a voter with impaired vision would certainly fall within it. Blindness is an impairment of the body. Plaintiff also mentions “epilepsy, or other motor control impairments that limit the ability to walk unaided.” (R. 1, Compl., PgID 8, ¶ 17). But these, too, would fall within the exception. Indeed, Defendant interprets the exception to include any physical impairment or disability that renders a voter temporarily or permanently unable to walk unaided, whether by another individual or by device,
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such as a walker, wheelchair, etc., to an election. The exception would cover inability to walk due to old age, a temporary illness, or any other physical condition that renders the voter unable to walk to an election.
The Equal Protection Clause prevents states from making distinctions that burden a fundamental right like the right to vote without an important or compelling basis to do so. Obama for America v. Husted, 697 F.3d 423, 428-29 (6th Cir. 2012). While Plaintiff alleges that the fundamental right to vote of some subset of disabled voters is burdened by § 931(1)(f), Plaintiff has not sufficiently alleged that the statute draws any lines or makes any meaningful distinctions among disabled voters. See e.g., Ryan v. City of Detroit, 174 F.Supp 3d 964, 981 (E.D. Mich 2016) (“Disparate treatment between classes is a threshold requirement for a traditional equal-protection claim.”) (citing Marie v. Am. Red Cross, 771 F.3d 344, 361 (6th Cir. 2014). Plaintiff thus fails to state a claim in Count IV as to the unconstitutionality of § 931(1(f).
CONCLUSION AND RELIEF REQUESTED For the reasons discussed above, Plaintiff Priorities USA lacks standing to raise the claims alleged in the Complaint. Alternatively, the Complaint fails to state a claim upon which relief may be granted. For either reason, the Complaint should be dismissed in its entirety.
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Dated: December 20, 2019

Respectfully submitted,
s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

CERTIFICATE OF SERVICE
I hereby certify that on December 20, 2019, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

33

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 13 filed 12/23/19 PageID.81 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA,

Plaintiff,

Civil Case No. 19-13341

vs.

HON. MARK A. GOLDSMITH

DANA NESSEL,

Defendant. __________________________/

ORDER REGARDING MOTION TO DISMISS

The Court has reviewed the pending motion to dismiss (Dkt. 10). In the motion, Defendant

argues, in part, that the complaint does not plead sufficiently detailed or specific factual allegations

and is, therefore, defective for failing to articulate a plausible claim, as required by the Supreme

Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

To promote judicial economy and “the just, speedy, and inexpensive determination” of

the action, Fed. R. Civ. P. 1, the Court advises the parties of its view that a party whose pleading

faces a motion to dismiss should assess whether alleged deficiencies may be cured by an amended

pleading, so that the Court and the parties are not required to address the sufficiency of a pleading

more than once. The parties are further advised that if a party does not currently utilize the

opportunity to amend and instead opposes the motion to dismiss, the Court will take that fact into

account should the motion to dismiss be granted and the opposing party then file a motion for leave

to amend.

Accordingly, Plaintiff may file an amended complaint within 21 days from the filing of the

motion to dismiss, either as of right pursuant to Fed. R. Civ. P. 15(a)(1)(B), or pursuant to leave

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now granted, if the prerequisites of Fed. R. Civ. P. 15(a)(1)(B) have not been met. If Plaintiff timely files an amended complaint, the Court will deny without prejudice the currently pending motion to dismiss as moot. If Plaintiff does not timely file an amended complaint, Plaintiff shall file a response to the motion in accordance with the time limits set forth in the local rules, and the Court will decide the motion.
SO ORDERED.

Dated: December 23, 2019 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

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 Case 4:19-cv-13341-SDD-RSW ECF No. 17 filed 01/27/20 PageID.88 Page 1 of 41

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
JUDGE MARK A GOLDSMITH
MAGISTRATE R. STEVEN WHALEN
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (42 U.S.C. § 1983)

Plaintiffs, complaining of Defendant Dana Nessel, in her official capacity as Michigan Attorney General, say and allege:
INTRODUCTION 1. “[E]ach and every citizen has an inalienable right to full and effective participation in the political processes,” Reynolds v. Sims, 377 U.S. 533, 565 (1964), and the choice whether to exercise the right to vote is central to the vindication of that right. See League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 724 (M.D. Tenn. 2019) (“Registering to vote is not a politically neutral act, and neither is declining to.”). As Justice Powell eloquently noted, “the citizen who distributes his party’s literature, who helps to register voters, or who transports voters to the polls on Election Day performs a valuable public service” that supports our democratic

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process. Branti v. Finkel, 445 U.S. 507, 529 n. 10 (1980) (Powell, J., dissenting). Efforts to encourage citizens to exercise political power not only support the democratic process, but also represent an outward manifestation of political expression, which are protected by the First and Fourteenth Amendments to the U.S. Constitution. See Buckley v. Am. Const’l Law Found., 525 U.S. 182, 193 (1999); Meyer v. Grant, 486 U.S. 414, 421 (1988); Hargett, 400 F. Supp. 3d at 720; League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1158 (N. D. Fla. 2012); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006); Hernandez v. Woodard, 714 F. Supp. 963, 973 (N.D. Ill. 1989).
2. A supermajority of Michigan voters expressed an unequivocal desire to expand access to voting for all Michigan citizens with passage of Proposal 3 in 2018. Proposal 3 enshrined in the Michigan Constitution eight enumerated voting rights all aimed at expanding access to the ballot and making it easier to vote. Included in these new rights are expanded no-excuse absentee and early voting and the right to register to vote any day, inclusive of Election Day. But these rights can be fully effectuated only if Michigan citizens have the ability to freely associate and organize throughout all phases of the voting lifecycle—that is, communicating about candidates and issues, conducting voter registration drives, and ensuring that all eligible voters have an opportunity to make it to vote.
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3. Some Michigan citizens will be left out of this new, expanded access to the franchise because Michigan law bans certain efforts to encourage and assist voters to vote. Michigan law makes it a misdemeanor to “hire a motor vehicle” to transport voters to the polls unless those voters are “physically unable to walk.” Mich. Comp. Law. § 168.931(1)(f) (the “Voter Transportation Ban”). Michigan law also criminalizes organizing efforts to encourage voters to submit applications for absentee ballots. Mich. Comp. Law § 168.759(4), (5), (8) (the “Absentee Ballot Organizing Ban”).
4. Together and independently, the Voter Transportation Ban and the Absentee Ballot Organizing Ban make voting even more difficult for people for whom voting is already difficult—in particular, those without access to private transportation. This includes young voters, senior voters, voters who are disabled, and low-income voters, all of whom lack access to private transportation at greater rates and traditionally use absentee voting. The Voter Transportation Ban and the Absentee Ballot Organizing Ban each represent unreasonable and unnecessary obstacles to voting that violate the First and Fourteenth Amendments and the clearly expressed wishes of a supermajority of the state.
5. Michigan’s Absentee Ballot Organizing Ban and Voter Transportation Ban impose substantial burdens on core political expression and activity. The first purports to restrict who can communicate with and assist Michigan voters from
-3-

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registering for an absentee ballot. The second purports to restrict anyone from paying for the transportation of voters to the polls. Both challenged provisions stand in the way of efforts to mobilize voters to participate in the electoral process and thereby increase their political power, particularly voters who have historically been underrepresented at the polls because they face difficulties getting to the polls on election day. The provisions therefore curb the efforts of progressive organizations like Plaintiff Priorities USA, who wish to encourage voters to support a progressive agenda, and of organizations like Rise and DAPRI who seek to increase the engagement of college students in the electoral process.
6. There are only 43 days until the Michigan primary election and only 281 days until the 2020 general election, which will include highly competitive races for federal offices. Because each election is a unique, non-repeatable occurrence, no amount of monetary damages can make Plaintiffs whole if the Absentee Ballot Organizing Ban and Voter Transportation Ban remain in place for the upcoming primary and general elections. “[O]nce the election occurs, there can be no do-over and no redress.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014). And each day lost is an opportunity lost to fundraise, recruit, and organize around activities specifically regulated by the bans—absentee ballot organizing and getting voters to the polls.
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PARTIES 7. Plaintiff Priorities USA is a 501(c)(4) nonprofit, voter-centric progressive advocacy and service organization. Priorities USA’s mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives. In furtherance of this purpose, Priorities USA works to help educate, mobilize, and turn out voters across the country, including in Michigan. Priorities USA has made and will continue to make contributions and expenditures in the millions of dollars to educate, mobilize, and turn out voters in the upcoming state and federal elections around the country. In particular, Priorities USA has committed to spending $100 million on voter engagement efforts in Michigan, Florida, Wisconsin, and Pennsylvania in anticipation of the 2020 election. In anticipation of the upcoming Michigan state and federal elections, Priorities USA has already spent over $1,000,000 on advertising and voter education. As part of its focus on educating and mobilizing voters in Michigan, Priorities USA launched Priorities Michigan, a project aimed specifically at educating and mobilizing voters and activists in Michigan. A significant focus of Priorities USA’s work in Michigan is digital advertising. Priorities USA also employs organizers on the ground in Michigan. These organizers work with local activists and organizations on projects designed to engage activists and voters in the political process.
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8. Plaintiff Rise, Inc. is a student-led 501(c)(4) nonprofit organization that runs statewide advocacy and voter mobilization programs in Michigan and California, as well as on a number of campuses nationwide. Students are integral to setting Rise’s agenda including its spending priorities. Rise’s mission is to fight for free public higher education and an end to homelessness, housing insecurity, and food insecurity among college students. Efforts to empower and mobilize students as participants in the political process including as student organizers and as voters are critical to Rise’s mission because building political power within the student population is a necessary condition to achieving its policy goals.
9. To meet its goal of expanding students’ access to the franchise in Michigan, Rise operates volunteer networks across the state at twelve university and community college campuses. In January 2019, Rise launched its second state specific campaign in Michigan. Rise has eleven student organizers in Michigan who are paid to organize their campuses. Part of the student organizers’ work is communicating to their fellow students the importance of exercising political power by participating in the electoral process through voting and organizing. This effort has included and will continue to include engaging their fellow students in grassroots voter education, registration, and turnout activities, including on-campus get-outthe-vote drives and canvasses. Rise plans to continue this program through the 2020 election and beyond.
-6-

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10. Rise also partners with student groups and student governments, providing them with the necessary resources to execute ideas they have developed to mobilize their fellow students’ participation in the political process, both in lobbying policymakers and voting. Additionally, Rise operates a grant-making program called “Run With It.” Rise offers $1,500 grants to college students that have innovative plans to get their fellow students to vote.
11. In 2018, Rise partnered with the student government at UC Berkeley to mobilize the student vote. In addition to a small grant, Rise provided relational organizing technology and assistance that enabled the student government to register 2,000+ voters on campus. As part of that effort, UC Berkeley students led a "Party at the Polls" where students could drop off their mail-in absentee ballots and celebrate with one another.
12. In 2018, Rise worked with the #VoteTogether coalition organized by Civic Nation to help organize at least four on-campus election day parties for students in California. The goal of the parties was to promote awareness and interest in voting on campus. As part of those parties, party attendees were offered free or discounted rides to the polls by Uber. The offering was a crucial value proposition for participating in the parties.
13. Rise intends to continue these efforts moving forward for the 2020 primary and general election. Rise has already awarded a $1,500 Run With It grant
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to Tova Carters, a student at Michigan State University, to educate students about their ability to vote by mail.
14. Plaintiff the Detroit/Downriver Chapter of the A. Philip Randolph Institute Detroit/Downriver Chapter (“DAPRI”) is the local chapter of the national 501(c)(3) nonprofit organization the A. Philip Randolph Institute. The A. Philip Randolph Institute, founded in 1965 by A. Philip Randolph and Bayard Rustin, is the senior constituency group of the AFL-CIO. DAPRI, a domestic nonprofit corporation, is a membership organization with the mission to continue to fight for Human Equality and Economic Justice and to seek structural changes through the American democratic process. DAPRI’s members are involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in the Detroit and Downriver areas of Michigan.
15. DAPRI works to educate voters about their voting options, to encourage voters to cast their ballots, and to provide assistance to help members of the Detroit/Downriver community vote, both in person and through absentee ballots. Some of DAPRI’s work specifically targets voters who are disabled and voters who speak Spanish and Arabic.
16. Over the past six years, DAPRI’s members have provided rides to the polls for various members of the community on election day. In addition to providing individuals with rides to the polls, DAPRI provides voters with rides after they cast
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their ballots. This direct transportation on election day makes in-person less onerous for hourly workers without personal transportation who would otherwise rely on public transportation. DAPRI intends to continue and expand this work in future elections.
17. In past elections, DAPRI has worked to inform individuals of their ability to cast absentee ballots. Before Proposal 3, that eligible group of individuals was limited to people who had certain difficulties making it to the polls on election day. Now that Proposal 3 has made absentee voting available to all, DAPRI would like to educate voters about the opportunities to apply to vote absentee in future elections.
18. Defendant Dana Nessel is the Attorney General of the State of Michigan. Defendant is Michigan’s top law enforcement official and responsible for prosecuting the laws of the State of Michigan, including the Voter Transportation Ban and the Absentee Ballot Organizing Ban. Defendant and all Michigan prosecuting attorneys have a duty to investigate and prosecute violations of Michigan election laws like the Voter Transportation Ban and the Absentee Ballot Organizing Ban that appear in Chapter 168 of Michigan Compiled Laws. Mich. Comp. Laws § 168.940. Defendant is sued in her official capacity only.
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JURISDICTION AND VENUE 19. This action arises under the U.S. Constitution and laws of the United States. Plaintiffs bring this action under the First and Fourteenth Amendments of the U.S. Constitution, which is actionable under 42 U.S.C. § 1983, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 20. This Court has original subject-matter jurisdiction of the federal questions presented in this case pursuant to 28 U.S.C. §§ 1331 and 1343. 21. Venue is proper pursuant to 28 U.S.C. §§ 1391(b) and 1391(c) because Defendant resides and/or conducts business in the Eastern District of Michigan. 22. Declaratory and injunctive relief is authorized by Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 23. Plaintiffs Priorities USA, Rise, and DAPRI are injured by the Voter Transportation Ban and the Absentee Ballot Organizing Ban because the statutes proscribe political expression which Plaintiffs desire to engage in. At a minimum, the statutes proscribe offering to assist voters with absentee ballot applications, restrict possession of absentee ballot applications, and ban paying a third party to transport voters to the polls. Plaintiffs desire to do each of these things in violation of the challenge statutes. Plaintiffs have no choice but to abstain from engaging in that conduct because the statutes, without question, ban it. Therefore, the challenged statutes harm Plaintiffs even in the absence of prosecutions because they are required
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to abstain from engaging in constitutionally protected political expression. NAACP v. Button, 371 U.S. 415, 433 (1963); Meyer, 486 U.S. at 417.
24. Plaintiffs Priorities USA, Rise, and DAPRI are further injured by the Voter Transportation Ban and the Absentee Ballot Organizing Ban because these statutory restrictions frustrate their missions and require Plaintiffs to divert their resources. See, e.g. Mote v. City of Chelsea, 284 F. Supp. 3d 863, 887 (E.D. Mich. 2019); Zynda v. Arwood, 175 F. Supp. 3d 791, 804 (E.D. Mich. 2016); see also Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1165–66 (11th Cir. 2008). The challenged statutes frustrate Plaintiffs’ mission of, and efforts in, educating, mobilizing, and turning out voters in Michigan by necessarily reducing the transportation options of Michigan citizens to get to polling places and by criminalizing the acts of individuals and organizations that want to (1) transport individuals to vote and (2) assist voters with registering for or returning absentee ballot applications.
25. Plaintiffs Priorities, Rise, and DAPRI are aware of the Voter Transportation Ban and the Absentee Ballot Organizing Ban and are expending and diverting additional funds and resources in GOTV, voter education efforts, mobilization, and turn out activities in Michigan, at the expense of its other efforts in Michigan, and for Priorities and Rise, at the expense of its efforts in other states, in order to combat the effects of the Voter Transportation Ban and the Absentee
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Ballot Organizing Ban. Plaintiffs are required to expend additional resources and employee time to educate their employees, volunteers, and partners about the Voter Transportation Ban and the Absentee Ballot Organizing Ban to avoid exposing them to criminal prosecution.
26. Getting students to the polls is one of Rise’s and DAPRI’s programmatic focuses in Michigan. Because of the Voter Transportation Ban, Rise and its student organizers, partners, and volunteers and DAPRI will have to recruit and train volunteers to drive students to voting rather than renting large capacity vehicles such as buses or leveraging existing resources like The Detroit Bus Company (a company that provided transportation to the polls in the Detroit metro area in the last election) and Uber.
27. Plaintiffs Priorities USA, Rise, and DAPRI are further injured by the Absentee Ballot Organizing Ban and the Voter Transportation Ban because they have abstained and continue to abstain from the political expression proscribed by these statutory restrictions out of a credible fear of prosecution. See Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447, 452 (6th Cir. 2014). Defendant and other state officials in Michigan have repeatedly refused to disavow enforcement of the Voter Transportation Ban and the Absentee Ballot Organizing Ban. This refusal to disavow enforcement of the challenged statutes constitutes a credible threat of prosecution. See id.
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28. On October 8, 2019, Plaintiff Priorities USA through counsel sent a letter to Secretary of State Jocelyn Benson with Defendant copied on the correspondence laying out Priorities USA’s concerns about the Voter Transportation Ban and the Absentee Ballot Organizing Ban. The letter requested an official opinion by Defendant regarding the constitutionality of the statute and generally requested a response by October 21, 2019. Neither Secretary Benson nor Defendant responded to the letter.
29. On December 20, 2019, Defendant filed a motion to dismiss in the instant suit in which she asserted the constitutionality of both the Voter Transportation Ban and the Absentee Ballot Organizing Ban.
30. On January 11, 2020, Plaintiff Priorities USA through counsel sent a letter to Defendant stating that it is both “contemplating spending money to transport Michigan voters to the polls … by, among other things, funding local efforts to hire vehicles to transport voters to the polls” and “contemplating deploying staff and volunteers to (1) educate Michigan voters about their options to use and request absent voter ballot applications; (2) distribute absent voter ballot applications; (3) offer to return absent voter ballot applications; and (4) actually return absent voter ballot applications.” Priorities USA expressed concern that these activities would violate the criminal statutes at issue in this litigation. Priorities USA requested that Defendant “commit to not prosecuting Priorities USA, its agents, and others who
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engage in such activities.” Priorities USA requested a response “to be received no later than January 23, 2020.” Again, Defendant did not respond.
31. On January 10, 2020 via email and on January 13, 2020 via U.S. first class mail, Plaintiff Priorities USA sent letters to all 83 county prosecutors in the State of Michigan with a duty to enforce the Absentee Ballot Organizing Ban and the Voter Transportation Ban. Mich. Comp. Laws § 169.940. Those letters were substantively identical to the one sent to Defendant, requested an assurance that the prosecutors would not enforce the statutes at issue in this litigation against Plaintiffs if they engaged in activity proscribed by the statute. The letters requested a response by January 23, 2020. Five prosecutors responded but refused to commit to not prosecute. The other seventy-eight prosecutors declined to respond.
32. As of the filing of this Amended Complaint, Defendant and the eightythree county prosecutors responsible for enforcement of the Absentee Ballot Organizing Ban and the Voter Transportation Ban continue to refuse to disavow prosecution of Plaintiff Priorities USA and others wishing to engage in activity covered by the challenged statutes.
GENERAL ALLEGATIONS The Voter Transportation Ban 33. The Voter Transportation Ban provides, in its entirety, that “[a] person shall not hire a motor vehicle or other conveyance or cause the same to be done, for
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conveying voters, other than voters physically unable to walk, to an election.” Mich. Comp. Laws § 168.931(1)(f). Anyone found guilty of violating the Voter Transportation Ban commits a misdemeanor, id., and faces the prospect of 90 days of imprisonment and a $500 fine, id. § 750.504.
34. The statute does not define what it means to “hire a motor vehicle or other conveyance.”
35. The Voter Transportation Ban burdens get-out-the-vote efforts including specifically rides-to-the-polls and souls-to-the-polls campaigns. These rides-to-the-polls campaigns are a keystone organizing tactic for political and advocacy organizations’ efforts to encourage voters to participate in the political process. Often these efforts are part of a core strategy to build political power in targeted communities.1 For example, these are a common organizing tactic within the African American community. One of Plaintiff DAPRI’s get-out-the-vote activities involves driving people to the polls because private transportation is
1 Many courts have recognized the importance of rides-to-the-polls or souls-to-thepolls efforts to voting especially in minority communities. Fair Fight Action, Inc. v. Raffensperger, No. 18-cv-5391, 2019 WL 6836774, at *3-4 (N.D. Ga. May 30, 2019) (finding standing because church that funds rides-to-the-polls will have to divert that funding to otherwise combat voter suppression); N.C. State Conference of NAACP v. McCrory, 182 F. Supp. 3d 320, 392 & n. 90 (M.D.N.C. 2016), rev’d on other grounds, 831 F.3d 204 (4th Cir. 2016) (discussing the importance of souls-to-the-polls campaigns in evaluating changes to early voting schedule); Florida v. United States, 885 F. Supp. 2d 299, 372 (D.D.C. 2012) (same); One Wisc. Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896, 924 (W.D. Wisc. 2016) (same).
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expensive and public transportation is unreliable in the Detroit area. Because of concerns about the time it takes to get to a polling place especially for hourly workers, the DAPRI drives people to the polls and then drives them to work or wherever they need to go after voting.
36. Although rides-to-the-polls efforts have historically been used in Black church communities, variants are gaining traction among other communities and through the use of rideshare applications like Uber and Lyft. During the 2018 general election, the nonprofit organization Voto Latino partnered with Lyft to provide free rides to the polls to voters in Dodge City, Kansas, a predominately Latinx city, when the polling place was moved to a location outside of town and more than a mile from the nearest public transportation. Avery Anapol, Lyft partnering with Latino activist group to take voters to polls after only polling station moved, The Hill (Oct. 22, 2018), https://thehill.com/homenews/campaign/412486-lyft-partnering-with-latinoactivist-group-to-take-dodge-city-voters-to-the. Similarly, the National Federation of the Blind partnered with Lyft to provide $15 ride vouchers for blind voters who needed rides to the polls on election day. National Federation of the Blind, A Lyft to the Polls (Nov. 1, 2018), https://www.nfb.org/blog/lyft-polls.
37. Rides-to-the-polls efforts often involve hiring a vehicle, either by hiring taxi services for voters or renting cars to transport voters. At their core, rides-to-the-
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polls efforts are about convincing individuals to exercise political power by voting. Often rides-to-the-polls efforts rely on both volunteer and paid transportation.
38. By eliminating the use of hired transportation, the Voter Transportation Ban necessarily reduces the number of drivers and vehicles able to transport Michigan citizens to the polls during early voting and on Election Day. See Meyer, 486 U.S. at 419 (explaining that restricting the use of paid help makes it more difficult for organizations to engage in political advocacy). The impact of the Voter Transportation Ban falls directly on those individuals who lack reliable transportation or suffer physical or mental impairments that make travel to the polls difficult or impossible.
39. The Voter Transportation Ban arbitrarily distinguishes between voters who are disabled. Although the Voter Transportation Ban makes an exception for voters who are disabled such that they cannot walk, it leaves out voters who are able to walk but cannot drive for other reasons. To illustrate, the Voter Transportation Ban makes it a misdemeanor to hire a taxi to take a neighbor to the polls if they suffer from blindness, epilepsy, or other motor control impairments that do not limit the ability to walk, but it is not a misdemeanor to hire a taxi to take a neighbor to the polls who cannot walk.
40. Because the Voter Transportation Ban criminalizes transportation “to an election” and registration and voting now take place at the same location and on
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the same date, organizations like Plaintiffs now face criminal charges for spending money to register voters. The law cannot distinguish between transporting voters to register to vote and transporting voters to vote. Thus, the Voter Transportation Ban burdens Plaintiffs’ core political speech.
41. The Voter Transportation Ban also chills organizational civic engagement. In 2018, the rideshare company Uber provided free and discounted rides to polling places for individuals on Election Day. According to an October 24, 2018 press release, Michigan was the only state for which Uber did not offer this promotion. Danielle Burr, Update on Uber Drives the Vote (Oct. 24, 2018), available at https://www.uber.com/newsroom/update-uber-drives-vote/. On information and belief, Uber did not provide Michigan citizens with discounted rides to polling places because of the Voter Transportation Ban.
42. The Voter Transportation Ban criminalizes the actions of citizens who contribute or spend funds to enable their fellow citizens to participate in the civic process. For example, The Detroit Bus Company, a Low Profit Limited Liability Company, provided Michigan voters with free rides to the polls during the 2018 election. This project cost about $4,000, and The Detroit Bus Company solicited donations from individuals to finance the project. Under the Voter Transportation Ban, the individuals who made non-tax-deductible donations to The Detroit Bus Company for this project could face imprisonment and fines for paying for voters to
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be transported to the polls. Similarly, other organizations, such as senior centers, nursing homes, churches, labor unions, party organizations, political campaigns, and student groups risk misdemeanor charges for arranging to bring voters to the polls. Even a neighbor who shares a taxi or Uber to the polls risks criminal liability for doing so under the Voter Transportation Ban. Because it also not is clear exactly what is covered by the law’s ban on hiring a motor vehicle or other conveyance, an organization that rents a van and recruits volunteer drivers could also face criminal liability.
43. There is no compelling justification for the Voter Transportation Ban. To the extent that the Voter Transportation Ban is meant to discourage or criminalize vote buying, that is accomplished through Michigan Compiled Laws § 168.931(b)(i), which makes it a misdemeanor to “receive, agree, or contract for valuable consideration” for “[v]oting or agreeing to vote, or inducing or attempting to induce another to vote, at an election.” Michigan law also makes it a felony to bribe a voter. Mich. Comp. Laws § 168.932(a). To that end, there is no adequate justification for the Voter Transportation Ban.
44. Because the Voter Transportation Ban bans the act of paying to transport voters to the polls, it functions as a $0 spending limitation for persons who seek to transport voters to the polls.
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45. The Voter Transportation Ban’s spending limitation applies to elections where federal candidates are on the ballot.
46. The Federal Election Campaign Act expressly preempts state laws concerning “[l]imitation[s] on contributions and expenditures regarding Federal candidates and political committees.” 11 C.F.R. § 108.7(b)(3).
47. The Voter Transportation Ban is in direct conflict with federal regulations that address election-related spending by corporations and labor organizations. These regulations expressly allow organizations to arrange for vehicles to transport voters to the polls or place of registration, which are now oneand-the-same in Michigan. E.g., 11 C.F.R. § 114.4(d)(1) (“A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at . . . the general public. Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration.”). To “provid[e] transportation” to voters and prospective voters, corporations and labor organizations will, in most instances, hire individuals to drive, a violation of the Voter Transportation Ban. Accordingly, the Voter Transportation Ban criminalizes federally sanctioned activities.
The Absentee Ballot Organizing Ban 48. Absentee voting is voting that occurs before and on Election Day via mail or in person at a municipal clerk’s office (as opposed to in person at a polling
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location). Absentee voting is more convenient than voting in person at designated polls; not only does it not require travel to a polling location, but it can also be done over a period of weeks preceding Election Day. Mich. Comp. Laws § 168.759. In other words, it can be done at the convenience of home (or anywhere) at a time that does not conflict with work, school, or other obligations, and does not require the expense, time, and burden of travel and potentially standing in long lines. Absentee voting is therefore particularly beneficial to students, the elderly, and people who are disabled, who are likely to have less access to transportation, as well as workers who may struggle to take sufficient time off to vote in person on Election Day.
49. In 2018, Michigan joined thirty-eight other states in allowing absentee voting without any excuse (sometimes called early voting) with the passage of Proposal 3. Michigan voters passed Proposal 3 by a supermajority. Prior to Proposal 3, only certain Michigan voters could participate in absentee voting (for example, voters who are disabled, voters over sixty, and pretrial detainees). See Mich. Comp. Laws § 168.758 (repealed 2018). Now all Michigan voters are eligible to participate. Id. § 168.2(a). Election officials in Michigan widely expect absentee voting numbers to surge in the presidential primary and 2020 general election, the first federal elections in which no-excuse absentee voting will be available to Michigan voters. But some voters will be left out of these newfound voting benefits because of the Absentee Ballot Organizing Ban.
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50. The Absentee Ballot Organizing Ban is comprised primarily of two parts: (1) a registration requirement that allows only persons who are registered voters in Michigan to assist voters with their absentee ballot applications and (2) a solicitation ban which bans requesting or soliciting to assist voters with their absentee ballot applications.
51. Under the Absentee Ballot Organizing Ban, to apply for an absentee ballot, a Michigan voter must submit a signed application to the clerk of the municipality where the voter resides and is registered. Id. § 168.759(3); § 168.759(4). But once signed, only the voter or designated groups of people can handle the application, limited to the following: (1) an election official or mail carrier, (2) a member of the applicant’s household or immediate family,2 or (3) a voter registered in Michigan “requested by the applicant to return the application.” Id. This last category is far more restrictive than it might appear at first blush. Any non-household or family member assisting with an absentee ballot application must not only be a Michigan registered voter, but must sign a certification on the application that reads:
I certify that my name is .................... , my address is .................... , and my date of birth is ............ ; that I am delivering the absent voter ballot application of .................... at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I 2 Immediate family is “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.” Mich. Comp. Laws § 168.2(l).
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have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. Id. § 168.759(5) (emphasis added). Any false statement on an absentee ballot application, including on the certification, is punishable as a misdemeanor. Id. § 168.759(8). An unauthorized person who distributes and returns an application is also guilty of a misdemeanor. Id. Despite these criminal penalties, the statute provides no guidance for what constitutes soliciting or requesting to return an absentee ballot application. 52. Political organizing to encourage and assist absentee voting is a traditional and effective means to increase voter participation. It is common for political campaigns and for advocacy organizations to educate voters about their options to vote absentee, to encourage voters to take advantage of the conveniences of absentee voting, and to offer assistance and to assist voters in voting absentee. These interactions foster conversations about why voting is important and are often platforms for discussions about the relative merits of candidates and other measures on the ballot. 53. The Absentee Ballot Organizing Ban is particularly troublesome given the recent changes to absentee voting laws in 2018. As a result of Proposal 3, all Michigan citizens are entitled to vote early or by absentee ballot without excuse. Id. § 168.759(1), (2). Prior to Proposal 3, Michigan Compiled Laws § 168.758 limited
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the availability of absentee voting to certain subsets of voters. The Absentee Ballot Organizing Ban will have a chilling effect on efforts to educate voters about these newfound benefits.
54. The Absentee Ballot Organizing Ban is not justified by any state interest in preventing voter fraud. The transaction the Organizing Ban regulates— the submission of an application for an absentee ballot—is attenuated from the points in voting where fraud can even occur. The Organizing Ban does not regulate who is eligible to vote or the ballots actually cast. To the extent that submitting an application facilitates fraud, the other procedures in the absentee voting system address that issue. In particular, an unauthorized third party who submits an absentee ballot application cannot obtain the actual ballot (a ballot will only be turned over in person or mailed directly to the voter). Id. § 168.761(3), (6). And if a voter were to receive an absentee ballot that the voter did not request, the voter could still vote in person at the polls and his or her absentee ballot would be cancelled. Id. § 168.769. Finally, a list of where and to whom absentee ballots were mailed is made public. Id. § 168.760.
55. The other protections for the sanctity of the absentee voting process in the Michigan Election Laws are myriad. Interference with absentee voting is criminalized in at least seven other ways:
a. It is a felony to forge a signature on an absentee ballot application, id. § 168.759(8);
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b. It is a felony to mark, alter, or switch out the absentee ballot itself, id. § 168.932(e);
c. It is a felony to possess an absentee ballot belonging to another, id. § 168.932(f);
d. It is a felony to “[s]uggest or in any manner attempt to influence” a voter filling out an absentee ballot, id. § 168.932(g), (h).
e. It is a felony to bribe a voter, id. § 168.932(a); f. It is a misdemeanor to promise or receive something of value
for deciding whether and for whom to vote, id. § 168.931(1)(a), (b); and g. It is a misdemeanor to, in any other way, violate the Michigan Election Laws, id. § 168.931(2). These criminal provisions diminish the need for the Absentee Ballot Organizing
Ban. See Buckley, 525 U.S. at 204-05; Meyer, 486 U.S. at 427.
CAUSES OF ACTION COUNT I
U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Absentee Ballot Organizing Ban is Unconstitutionally Vague and Overbroad)
56. The Absentee Ballot Organizing Ban’s solicitation ban is
unconstitutionally vague. The solicitation ban prohibits “solicit[ing] or request[ing]
to return” an absentee ballot application. Mich. Comp. Laws § 168.759(4), (5).
57. Any state criminal law that is “so vague that it fails to give ordinary
people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement” violates the Due Process Clause of the Fourteenth Amendment. See
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United States v. Johnson, 135 S. Ct. 2551, 2556 (2015) (applying the Due Process Clause of the Fifth Amendment to strike down a federal criminal law). When a criminal law effects political expression, the “standards of permissible statutory vagueness are strict.” Button, 371 U.S. at 432.
58. The Absentee Ballot Organizing Ban does not provide any guidance on what it means to solicit or request to return an absentee ballot application. For example, it is unclear whether an organizer solicits a voter to return an absentee ballot application when the organizer informs the voter of the voter’s right to participate in absentee voting including the voter’s right to request assistance with delivering an application. This interaction—whereby an organizer provides factually accurate information to a voter about the voter’s rights—cannot be constitutionally proscribed. See id. at 434; cf. United State v. Hylton, 710 F.2d 1106, 1111 (5th Cir. 1983) (holding that the First Amendment prohibited punishing an individual for “filing a factually accurate, nonfraudulent criminal complaint”). Nothing in the solicitation ban, however, prevents application of the ban to just this interaction. “There thus inheres in the statute the gravest danger of smothering all discussion looking to the” exercise of voter’s right to vote absentee. Button, 371 U.S. at 434.
59. The solicitation ban’s vagueness is particularly troublesome given the recent expansion of absentee voting rights to all Michigan voters. Political campaigns and advocacy organizations, like Plaintiffs, have a significant interest in
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educating voters about their new rights. But what organization will ask persons to risk criminal sanction to educate voters about how to exercise their right to absentee vote? The solicitation ban will chill these conversations. Id. at 432; cf. Hargett, 400 F. Supp. 3d at 720.
60. The solicitation ban is therefore unconstitutionally vague under the Due Process Clause and vague and overbroad under the First Amendment to the U.S. Constitution.
COUNT II U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Absentee Ballot Organizing Ban Violates Speech and Associational
Rights Protected by the First and Fourteenth Amendments) 61. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein. 62. The Absentee Ballot Organizing Ban regulates core political expression (that is, speech and associational conduct). The Supreme Court and courts across the country have repeatedly described activities aimed at encouraging voters to participate in the political process as constitutionally protected political expression. See Buckley, 525 U.S. at 193; Meyer, 486 U.S. at 421; Hargett, 400 F. Supp. 3d at 720; League of Women Voters of Fla., 863 F. Supp. 2d at 1158; Project Vote, 455 F. Supp. 2d at 700; Hernandez, 714 F. Supp. at 973 (“Where groups, formal or informal, seek to advance their goals through the electoral process, [restrictive]
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regulations … impair their ability effectively to organize and make their voices heard.”); see also Button, 371 U.S. at 437 (“Free trade in ideas means free trade in the opportunity to persuade to action.” (citations omitted)).
63. “Political speech is at the core of First Amendment protections.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016). The Absentee Ballot Organizing Ban is subject to strict scrutiny review because it proscribes political expression based on the identity of the speaker. See id.; Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340-41, 366 (2010). Therefore, the Ban must be narrowly tailored to serve a compelling government interest. Citizens United, 558 U.S. at 340. The solicitation ban is further subject to strict scrutiny because it serves as a content-based restriction on speech. Berger v. City of Seattle, 569 F.3d 1029, 1051-52 (9th Cir. 2009) (applying strict scrutiny to a law that banned active solicitation of donations because it made a content-based restriction); see also Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642-43 (1994); Burson v. Freeman, 504 U.S. 191, 197 (1992); Planet Aid v. City of St. Johns, MI, 782 F.3d 318, 326 (6th Cir. 2015); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1489 (6th Cir. 1995). The Absentee Ballot Organizing Ban otherwise directly regulates core political expression and is therefore subject to exacting scrutiny. See Hargett, 400 F. Supp. 3d at 722 (“The Supreme Court, accordingly, has applied ‘exacting scrutiny’—not Anderson-Burdick—to cases governing election-related
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speech rather than ‘the mechanics of the electoral process.’” (citations omitted)); see also Citizens United, 558 U.S. at 366-67. But see Buckley, 525 U.S. at 207 (Thomas J. concurring) (arguing that strict scrutiny applies even to laws that affect but do not directly regulate core political speech). Exacting scrutiny requires a substantial relationship between the challenged regulation and a sufficiently important governmental interest. Citizens United, 558 U.S. at 366-67; John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010). “[T]he strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” John Doe No. 1, 561 U.S. at 196.
64. The Absentee Ballot Organizing Ban bears no fair relationship to prevention of voting fraud or any other important government interest. As a result, the Absentee Ballot Organizing Ban violates the First and Fourteenth Amendment to the U.S. Constitution.
COUNT III U.S. Const. Amend. XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Absentee Ballot Organizing Ban Imposes an Undue Burden on the Fundamental Right to Vote)
65. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.
66. The Absentee Ballot Organizing Ban’s registration requirement is an undue burden on the fundamental right to vote protected by the Fourteenth Amendment to the U.S. Constitution.
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67. Fourteenth Amendment undue burden claims are analyzed under the Anderson-Burdick framework. Under Anderson-Burdick, a reviewing court considers “the relative interests of the State and the injured voters,” and evaluates “the extent to which the State's interests necessitated the contested restrictions.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995). The more severe the burden on First and Fourteenth Amendment rights created by a regulation, the more severe the scrutiny applied to the regulation. Burdick v. Takushi, 504 U.S. 428, 434 (1992).
68. The registration requirement bears no fair relationship to preventing voting fraud or any other important government interest.
69. Conversely, the registration requirement severely burdens the fundamental right to vote by limiting the number of people available to assist voters in submitting their absentee ballot applications. For example, a voter could not ask someone who is not a registered voter in Michigan to help with taking the application to the post office, scanning and emailing the application, or faxing the application.
70. The registration requirement removes approximately 750,000 voting eligible Michigan residents who are not registered to vote from the population of persons available to assist voters in submitting absentee ballot applications. That 750,000 persons does not include the hundreds of thousands of voting age persons
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who are not eligible to vote in Michigan or persons—registered, voting eligible, or otherwise—who do not permanently reside in Michigan.
COUNT IV Violation of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508 (Federal Law Supersedes and Preempts the Absentee Ballot Organizing Ban)
71. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.
72. The Absentee Ballot Organizing Ban conflicts with and violates Section 208 of the Voting Rights Act, 52 U.S.C. § 10508, and is thus preempted and invalid. Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (“[S]tate laws that conflict with federal law are without effect.” (citations omitted)); Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (conflict preemption occurs when (a) it is physically impossible to comply with state and federal law, or (b) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”).
73. Section 208 of the Voting Rights Act provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Within the context of the Voting Rights Act, the act of voting includes “all action necessary to make a vote effective in any primary, special, or general election.” 52 U.S.C. § 10310(c)(1). This includes all stages of applying for an absentee ballot. OCA-Greater Houston v.
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Texas, 867 F.3d 604, 615 (5th Cir. 2017) (“‘To 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,’ 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 example in a nonexhaustive list of actions that qualify as voting.”)
74. Congress passed the Voting Rights Act to correct entrenched “racial discrimination in voting” that was “an insidious and pervasive evil.” South Carolina v. Katzenbach, 383 U.S. 301, 308-09 (1966). In recommending that Section 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 to have the assistance of a person of their own choice.” Id.
75. Section 208 preempts the portions of the Absentee Ballot Organizing Ban that restrict who can provide voters with assistance because the state law criminalizes conduct expressly allowed by Section 208. The Absentee Ballot Organizing Ban unlawfully limits the rights afforded to voters by Section 208 by prohibiting voters who need help returning their absentee ballot applications from
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receiving assistance from the person of their choice. See Mich. Comp. Laws § 168.759(3); § 168.759(4). Under Michigan Law, a voter must choose from a specific list of individuals to help them return their absentee ballot applications and is not free to choose anyone who is not a registered Michigan voter. Id. Section 208 cannot be interpreted to permit this portion of the Absentee Ballot Organizing Ban to stand. See OCA-Greater Houston, 867 F.3d at 615 (Section 208 preempted a Texas law restricting who may provide interpretation assistance to English-limited voters); United States v. Berks Cty., 277 F. Supp. 2d 570, 580 (E.D. Pa. 2003) (county election law restricting who may provide language assistance to Spanish-speaking voters violated Section 208).
76. In fact, 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 the assistance was needed” would violate Section 208. S. Rep. No. 97-417, at 63 (1982). By prohibiting a voter who needs assistance completing their absentee ballot application from being helped by anyone who offers to help them, the Absentee Ballot Organizing Ban also violates Section 208.
77. The Absentee Ballot Organizing Ban affects disproportionately Michigan citizens with disabilities. In 2012, “close to one-tenth of people with disabilities who voted by mail reported having difficulties in doing so, saying they
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needed assistance filling out or sending the ballot.” Lisa Schur et al., Accessible Democracy: Reducing Voting Obstacles for People with Disabilities, 14 Election Law J. 60, 63 (2015). The Absentee Ballot Organizing Ban makes it harder for those Michigan citizens to vote because it adds an additional hurdle to even receiving the absentee ballot.
78. As a result of the Absentee Ballot Organizing Ban, Michigan voters with language barriers or disabilities are denied the voting assistance that Section 208 of the Voting Rights Act guarantees them.
COUNT V U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban is Unconstitutionally Vague and Overbroad)
79. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.
80. The Voter Transportation Ban is unconstitutionally vague under the First and Fourteenth Amendment. It criminalizes the act of “hir[ing] a motor vehicle” to transport voters to the polls unless those voters are “physically unable to walk.” Mich. Comp. Law. § 168.931(f).
81. The Voter Transportation Ban does not provide any guidance on what it means to hire a motor vehicle. For example, it is unclear whether an individual hires a motor vehicle when they take a taxi or an Uber to the polls and allow a neighbor to accompany them for free. It is unclear whether an organization that rents
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a vehicle for election day that volunteer drivers use to take voters to the polls have hired a vehicle. And it is unclear whether the act of providing a driver who takes voters to the polls with any sort of compensation, be it in the form of a wage, a stipend, or gas money, constitutes hiring a vehicle for the purposes of the Voter Transportation Ban
82. The Voter Transportation Ban is therefore unconstitutionally vague under the Due Process Clause and vague and overbroad under the First Amendment to the U.S. Constitution.
COUNT VI U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban Violates Speech and Associational Rights
Protected by the First and Fourteenth Amendments) 83. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein. 84. The Voter Transportation Ban burdens core political expression and acts as a ban on political expenditures. Accordingly, is subject to, at a minimum, exacting scrutiny. See Citizens United, 558 U.S. at 366-67; Meyer, 486 U.S. at 420; Buckley v. Valeo, 424 U.S. 1, 25, 44-45 (1976); Hargett, 400 F. Supp. 3d at 722. 85. The Voter Transportation Ban bears no fair relationship to preventing voting fraud or any other important government interest. Therefore, the Voter
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Transportation Ban violates the First and Fourteenth Amendment to the U.S. Constitution.
86. The Voter Transportation Ban imposes a $0 spending limitation on the act of transporting voters to the polls. The act of transporting voters to the polls is a recognized element of voter registration and get-out-the-vote drives. E.g., 11 C.F.R. § 114.4(d)(1) (“Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration.”). And as now-Justice Kavanaugh noted in Emily’s List v. Federal Election Commission, organizations “are entitled to spend and raise unlimited money for those activities.” 581 F.3d 1, 16 (D.C. Cir. 2009) (referring to “advertisements, get-out-the-vote efforts, and voter registration drives”).
87. A long line of Supreme Court precedent holds that any regulation of political spending must be “‘closely drawn’ to serve a cognizable anticorruption interest.” Emily’s List, 581 F.3d at 18 (citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008)); Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 478-80 (2007); Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496-97 (1985); Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, Cal., 454 U.S. 290, 296-97 (1981); Valeo, 424 U.S. at 2627.
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88. No such anticorruption justification exists for the Voter Transportation Ban, and even if one did exist, the law is not closely drawn to address it. Because the Voter Transportation Ban is not closely drawn to serve an anticorruption interest, it violates the First and Fourteenth Amendments to the U.S. Constitution.
COUNT VII U.S. Const. Amend. XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Voter Transportation Ban Creates an Undue Burden on the Fundamental Right to Vote)
89. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.
90. The Voter Transportation Ban is an undue burden on the fundamental right to vote protected by the Fourteenth Amendment to the U.S. Constitution.
91. The Voter Transportation Ban bears no fair relationship to preventing voting fraud or any other important government interest.
92. Conversely, the Voter Transportation Ban severely burdens the fundamental right to vote. The Voter Transportation Ban increases the costs of voting by requiring voters to pay the full cost of finding private transportation to the polls, see Veasy v. Abbott, 830 F.3d 216, 263 (5th Cir. 2016) (Higginson, J., joined by Costa, J., concurring), and by necessarily reducing the transportation available to voters, see Meyer, 486 U.S. at 419. For those voters who cannot secure private transportation and must rely on foot or public transportation, the Voter Transportation Ban significantly increases the amount of time it takes to vote. It
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follows, therefore, that restrictions on voter transportation will prevent voters from casting ballots.
Count VIII Declaratory Judgment Act 28 U.S.C. § 2201, 28 U.S.C. § 2202 (Federal Law Supersedes and Preempts the Voter Transportation Ban) 93. Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein. 94. Pursuant to 52 U.S.C. § 30143, rules prescribed under the Federal Election Campaign Act of 1971 (FECA), as amended, “supersede and preempt any provision of State law with respect to election to Federal office.” Federal Election Commission regulations promulgated pursuant to FECA further articulate the scope of this preemption. 11 C.F.R. § 108.7 (expanding on the preemptive scope of FECA and FECA regulations). 95. Federal Regulation 11 C.F.R. § 114.4 was promulgated pursuant to FECA, which regulates political campaign spending and fundraising. In relevant part, the regulation permits corporations and labor organizations to spend money to transport members of the general public to the polls through voter registration and get-out-the-vote drives. Id. § 114.4(d)(1). Similarly, 11 C.F.R. § 114.3(c)(4)(i) permits corporations and labor organizations to spend money to transport a smaller subset of the general public to the polls.
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96. By contrast, the Voter Transportation Ban effectively serves as a $0 spending limitation for transporting voters to the polls.
97. The Voter Transportation Ban is preempted by FECA and its regulations through either express or conflict preemption, and Defendant should be enjoined from enforcing it during elections when candidates for federal office are on the ballot. E.g., Republican Party of N.M. v. King, 850 F. Supp. 2d 1206, 1216 (D.N.M. 2012), aff’d, 741 F.3d 1089 (10th Cir. 2013) (enjoining enforcement of state campaign spending law with respect to federal office holders); Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) (holding that FECA preempted voluntary state spending limitations).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against Defendant, and: a. Declare, under the authority granted to this Court by 28 U.S.C. § 2201,
that (1) Michigan Compiled Laws § 168.759(4), (5), and (8) (the “Absentee Ballot Organizing Ban”) and Michigan Compiled Laws § 168.931(1)(f) (the “Voter Transportation Ban”) are preempted by federal law; and (2) the Absentee Ballot Organizing Ban and Voter Transportation Ban violate the First and Fourteenth Amendments to the U.S. Constitution;
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b. Preliminarily and permanently enjoin Defendant and her agents, officers, employees, successors, and all persons acting in concert with each or any of them from enforcing Michigan Compiled Laws § 168.759(4), (5), and (8) and Michigan Compiled Laws § 168.931(1)(f);
c. Award Plaintiffs their costs, disbursements, and reasonable attorneys’ fees incurred in bringing this action pursuant to 42 U.S.C. § 1988 and other applicable laws; and
d. Grant Plaintiffs such other and further relief as the Court deems necessary and proper.

Dated: January 27, 2020
Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

Respectfully submitted,
By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

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CERTIFICATE OF SERVICE I hereby certify that on January 27, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 20 filed 01/27/20 PageID.131 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Phillip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
DISTRICT JUDGE MARK A. GOLDSMITH
MAGISTRATE JUDGE R. STEVEN WHALEN
MOTION FOR CONSOLIDATION OF
RELATED CASES

Pursuant to Federal Rules of Civil Procedure 42 and Local Rule 83.11, Plaintiffs move for consolidation of Priorities USA v. Nessel, Case No. 2:20-cv10211 (“Priorities II”), with this action (“Priorities I”). The undersigned counsel certifies that counsel communicated in writing with opposing counsel, explaining the nature of the relief to be sought by way of this motion and seeking concurrence in the relief; opposing counsel thereafter expressly denied concurrence.
In this action, Defendant filed a motion to dismiss on December 20, 2019, alleging that Plaintiff lacked standing to bring its claims. Dkt. 10. Plaintiffs filed an amended complaint on January 27, 2020. Dkt. 17. That amended complaint included additional factual allegations, added Plaintiffs Rise, Inc. and the Detroit/Downriver

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Chapter of the A. Philip Randolph Institute, added new claims, and omitted a claim. Id.
Contemporaneously with the amended complaint, Plaintiffs also filed Priorities II in the Eastern District of Michigan. Civ. Act. No. 2:20-cv-10211, Dkt. 1. Priorities II involves the same parties and identical factual allegations and claims as the amended complaint filed in this action. Priorities II was filed out of an abundance of caution to ensure that new allegations were considered in the court’s assessment of standing.
Federal Rule of Civil Procedure 42(a) allows consolidation of two actions if the actions “involve a common question of law or fact.” Because the issues and parties are identical, it is appropriate for the court to consolidate the two actions and treat them as a single case. See Advey v. Celotex Corp., 962 F.2d 1177, 1181 (6th Cir. 1992). The consolidation of the actions in front of this court would prevent duplicative proceedings and be the most efficient because that court has already entertained motions practice, Civ. Act. No. 19-13341 Dkt. 10, and entered an order in response, Dkt. 13. Accordingly, Plaintiffs move for consolidation of Priorities II into this action.
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Dated: January 27, 2020
Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

Respectfully submitted,
By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

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CERTIFICATE OF SERVICE I hereby certify that on January 27, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that it is the appropriate length. Local Rule 7.1(d)(3).
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 26 filed 02/07/20 PageID.366 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., DETROIT/DOWNRIVER CHAPTER
OF THE A. PHILIP RANDOLPH INSTITUTE,

No. 19-13341

Plaintiffs,
v
DANA NESSEL, in her official capacity as the ATTORNEY GENERAL OF THE STATE OF MICHIGAN,

HON. STEPHANIE DAWKINS DAVIS
MAG. R. STEVEN WHALEN

Defendant. __________________________________/
Sarah S. Prescott (P70510) Attorney for Plaintiffs
105 East Main Street Northville, Michigan 48168
248.679.8711

Kevin J. Hamilton Attorney for Plaintiffs
1201 Third Ave, Suite 4900 Seattle, Washington 98101
206.359.9741

Heather S. Meingast (P55439) Erik A. Grill (P64713)
Assistant Attorneys General Attorneys for Defendant
P.O. Box 30736 Lansing, Michigan 48909
517.335.7659

Marc E. Elias Attorney for Plaintiffs 607 Fourteenth St, NW Washington, DC 20005 202.628.6600
/

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE

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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether consolidation should be denied where the new
action is identical to the instant case, was filed after the Plaintiffs had already amended their complaint, and serves no legitimate purpose? CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Fed. R. Civ. Proc. 42
i

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STATEMENT OF FACTS This case was originally filed by Plaintiff Priorities USA on November 12, 2019, and it alleged constitutional violations concerning two separate statutes. (R.1, Cmplt, PageID #1-18). On December 4, 2019, the Court entered a stipulated order granting a two-week extension for Defendant Michigan Attorney General Dana Nessel to respond to the complaint. (R.6, Stip. Dec. 5 Order, PageID #25-26). On December 20, Attorney General Nessel filed a motion to dismiss on grounds that Priorities USA lacked standing because it lacked an injury-in-fact, and also that the complaint failed to demonstrate that the statutes violated any constitutional rights. On December 23, 2019, this Court entered an order sua sponte in which the Court essentially invited Priorities USA to amend its complaint within 21 days if doing so would address the issues raised in the motion to dismiss. (R.13, Dec. 23 Order, PageID #81-82). On January 9, 2020, the Court entered a stipulated order granting Priorities USA a two-week extension, making their response or amended complaint due on January 24, 2020. (R.15, Jan. 9 Order, PageID #84-85).
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On January 23, 2020, the parties stipulated to another extension for Priorities USA to respond to the motion to dismiss or file an amended complaint, which was entered by the Court on January 27. (R.16, Jan. 27 Order, PageID #86-87). The order granted two additional business days, making the deadline January 28, 2020.
On the morning of January 27, 2020, Priorities USA’s counsel sought concurrence in a motion to consolidate an as-yet-unfiled new complaint with this case. (Ex. A, 1/27/2020 e-mail). Counsel did not provide a copy of the proposed new civil action. (Ex. A). In response, Defense counsel questioned the need for a second lawsuit. (Ex. A.). Plaintiffs’ counsel did not provide a copy of the proposed new action or offer any explanation for the necessity of filing a new, identical complaint, instead thanked defense counsel for their “input.” (Ex. A).
Priorities USA filed an amended complaint on January 27, 2020, which added two new plaintiffs—Rise, Inc. and the Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI)—new allegations (increasing from 39 to 97 paragraphs), and four new legal claims. (R.17, Am. Cmplt, PageID #88-128). On the same day, the identical plaintiffs (Priorities USA, Rise, Inc., and DAPRI) filed a separate complaint
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against the same defendant, Attorney General Nessel, raising identical allegations and identical legal claims (E.D. Mich Case No. 2:20-cv10211, Priorities USA v. Nessel). Plaintiffs immediately moved to consolidate the new lawsuit with this case. (R.20, Motion to Consolidate, PageID #131-134). Plaintiffs continue to offer no explanation for the redundant pleading other than a vague reference to doing so “out of an abundance of caution to ensure that new allegations were considered in the court’s assessment of standing.” (R.20, PageID #132).
ARGUMENT I. Fed. R. Civ. Proc. 42 does not permit consolidation of
redundant actions that create unnecessary cost and delay. Plaintiffs cite to Fed. R. Civ. P. 42(a) and argue that consolidation is allowed if two actions “involve a common question of law or fact.” (R.20, PageID #132). But Plaintiffs’ recitation of the Rule is incomplete, and Rule 42 merely permits consolidation while also allowing Courts to enter orders to avoid costs and delays: If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions;
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(2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. (Emphasis added). Far from avoiding unnecessary costs or delays, the filing of an identical complaint can only add confusion, duplication, and costs to this litigation. It is entirely unclear what purpose the second lawsuit could possibly serve, and it seems like a solution in search of a problem. For their part, Plaintiffs state only that it was filed “out of an abundance of caution to ensure that new allegations were considered in the court’s assessment of standing.” (R.20, PageID #132). But caution about what? It is unclear what risk would prompt the need to file the same complaint twice. Indeed, the Court had already invited an amended complaint to address the standing issues raised in the Attorney General’s motion to dismiss. There has been no indication that the Court would not consider Plaintiffs’ amended complaint. Regardless, if there were some defect in the amended complaint that would prevent the Court from considering the allegations, the same defect would be present in this identical separate complaint (filed with the Court on the same day as
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the amended complaint) and would thus be subject to dismissal on the same grounds. Filing the same complaint twice would do nothing to force the Court’s attention to any issues.
Moreover, consolidation of the duplicative filing would not be without consequence to the Court and Attorney General Nessel. Procedurally, consolidated cases are listed together in the caption, increasing the length of every pleading and filing with the Court. (See e.g. WD-Mich 1:19-cv-00614; 1:19-cv-00669). Also, notices would have to be sent in both the original and consolidated cases. Id. Consolidation of an identical complaint adds confusion and duplication to the Court’s file—and the parties files—while providing absolutely no benefit to anyone.
Further, there are also unnecessary costs associated with consolidation in this circumstance. It should not escape the Court’s attention that the Plaintiffs’ claims are based on 42 U.S.C. § 1983, which—as the Court is aware—provides for the award of attorney fees to a prevailing party. Should Plaintiffs prevail, they may seek the costs of filing the second complaint, filing this motion, and all the subsequent
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consolidation-related expenses. Rule 42 was clearly not intended as a vehicle for parties to multiply their billable costs.
Last, Fed. R. Civ. P. 11(b)(2) provides that by filing a pleading with the court, an attorney certifies that, “it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the costs of litigation.” There is no apparent legitimate purpose for simultaneously filing an amended complaint and an identical complaint with the same parties and claims as a separate action. Plaintiffs—despite a direct request—have offered no substantive explanation for this course of action. So it is fair to question Plaintiffs’ purpose. The plain effect of Plaintiffs’ duplicative filing would be to cause delay and increase costs while doing nothing to assist either the Court or the parties. Rule 42 should not be read to permit the consolidation of a complaint that appears to be in conflict with Rule 11.
CONCLUSION AND RELIEF REQUESTED For these reasons, Defendant Attorney General Dana Nessel respectfully requests that this Honorable Court deny Plaintiffs’ motion to consolidate and enter an order directing that the duplicative
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complaint be dismissed, together with any other relief that the Court

determines to be appropriate, including an award of costs and fees

incurred in having to respond to this needless motion.

Respectfully submitted,

Dated: February 7, 2020

s/Heather S. Meingast Heather S. Meingast (P55439)
Erik A. Grill (P64713) Assistant Attorneys General
Attorneys for Defendant P.O. Box 30736
Lansing, Michigan 48909 517.335.7659
Email: meingasth@michigan.gov P55439

CERTIFICATE OF SERVICE
I hereby certify that on February 7, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

s/Heather S. Meingast Heather S. Meingast (P55439)
Assistant Attorney General P.O. Box 30736
Lansing, Michigan 48909 517.335.7659
Email: meingasth@michigan.gov P55439

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., DETROIT/DOWNRIVER CHAPTER
OF THE A. PHILIP RANDOLPH INSTITUTE,

No. 19-13341

Plaintiffs,
v
DANA NESSEL, in her official capacity as the ATTORNEY GENERAL OF THE STATE OF MICHIGAN,

HON. STEPHANIE DAWKINS DAVIS
MAG. R. STEVEN WHALEN

Defendant. __________________________________/

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE

EXHIBIT LIST

A. Email exchange between Erik Grill and Sarah Prescott

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 Case 4:19-cv-13341-SDD-RSW ECF No. 27 filed 02/10/20 PageID.381 Page 1 of 54

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

No. 19-13341

Plaintiffs,

HON. STEPHANIE DAWKINS

DAVIS

v

MAG. R. STEVEN WHALEN

DANA NESSEL, in her official capacity

as the ATTORNEY GENERAL OF THE DEFENDANT’S MOTION TO

STATE OF MICHIGAN,

DISMISS AMENDED

COMPLAINT

Defendant.

__________________________________/

Sarah S. Prescott (P70510)

Kevin J. Hamilton

Attorney for Plaintiffs

Attorney for Plaintiffs

105 East Main Street

1201 Third Ave, Suite 4900

Northville, Michigan 48168

Seattle, Washington 98101

248.679.8711

206.359.9741

Heather S. Meingast (P55439)

Marc E. Elias

Erik A. Grill (P64713)

Attorney for Plaintiffs

Assistant Attorneys General

607 Fourteenth St, NW

Attorneys for Defendant

Washington, DC 20005

P.O. Box 30736

202.628.6600

Lansing, Michigan 48909

517.335.7659

/

DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT

Defendant Michigan Attorney General Dana Nessel moves for dismissal of

Plaintiffs Priorities USA, Rise Inc., and Detroit/Downriver Chapter of the A. Philip

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Randolph Institute’s (DAPRI) amended complaint pursuant to Fed. R. Civ. Proc. 12(b)(1) and (6), for the following reasons:
1. This complaint is a challenge to the constitutionality of several sections of the Michigan Election Law that concern the paid transportation of voters to elections and who may deliver a signed application for an absent voter ballot. 2. Plaintiffs Priorities USA and Rise Inc. are organizations and do not allege that they have members who vote in Michigan. 3. Plaintiff DAPRI is a membership organization but does not allege that the rights of any of its members are affected by the challenged statutes. 4. The amended complaint does not identify any voters who have experienced any difficulties in transporting themselves to their polling locations or in obtaining and returning an absent voter ballot application due to the existence or operation of the statutes, and does not demonstrate any special relationship between Plaintiffs and such unidentified voters that would support third-party standing. 5. None of the Plaintiffs have alleged that they will incur any particularized injury as a result of the challenged statutes. 6. Plaintiffs’ claims are instead predicated upon abstract and generalized grievances that are indistinguishable from the interests of any citizen of the State.
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7. Plaintiffs lacks standing to bring claims challenging the statutes identified in the complaint. 8. Alternatively, Plaintiffs’ complaint should be dismissed because Plaintiffs fail to state a claim upon which relief may be granted. 9. Regarding Mich. Comp. Laws § 168.931(1)(f), which prohibits hiring vehicles or other conveyances to transport voters to an election, the statute only minimally burdens a voter’s right to vote or Plaintiffs’ right to speech and association. And the burden is outweighed by the State’s interest in preserving the integrity of the conduct of elections. The statute is not unconstitutional. 10.Similarly, in regard to the statutes governing the absent voter ballot application process, see Mich. Comp. Laws § 168.759, the statutes only minimally burden a voter’s right to vote or Plaintiff’s right to speech and association. And the burden is outweighed by the State’s interest in preserving the integrity of the absent voter ballot application process. The statutes are not unconstitutional. 11.Concurrence in the relief sought in this motion was denied.
For these reasons and the reasons stated more fully in the accompanying brief in support, Defendant Attorney General Nessel respectfully requests that this Honorable Court enter an order dismissing Plaintiff’s complaint against her in its entirety and with prejudice, pursuant to Fed. R. Civ. Proc. 12(b)(1) and (6).
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Dated: February 10, 2020

Respectfully submitted,
s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PRIORITIES USA,

No. 19-13341

Plaintiff,

HON. MARK A. GOLDSMITH

v

MAG. R. STEVEN WHALEN

DANA NESSEL, in her official capacity as the Michigan Attorney General,
Defendant. __________________________________/ Sarah S. Prescott (P70510) Attorney for Plaintiff 105 E. Main St. Northville, Michigan 48168 248.679.8711

BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659
/

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

Dated: February 10, 2020

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659

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TABLE OF CONTENTS
Page
Table of Contents ....................................................................................................... i
Index of Authorities ................................................................................................. iii
Concise Statement of Issue Presented ..................................................................... vi
Controlling or Most Appropriate Authority............................................................ vii
Statement of Facts......................................................................................................1
A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications ............................................................................................ 3
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections........7
Procedural History .....................................................................................................8
Argument.................................................................................................................. 10
I. Plaintiffs’ complaint should be dismissed where they lack standing to sue and the complaint otherwise fails to state a claim upon which relief may be granted. ....................................................................................10
A. Plaintiffs lacks standing to sue because they have not plead a sufficient injury-in-fact and cannot sue in a representational capacity. ............................................................................................... 10
1. Plaintiffs have not sufficiently alleged an injury-in-fact. .........11
2. Plaintiffs lack standing to sue in a representational capacity. ....................................................................................16
B. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Absentee Ballot Organizing Plan.” ...................................................................................................19
1. The statutes are not vague.........................................................22
2. The statutes only minimally burden the right to speech and association. .........................................................................24 i

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3. The statutes only minimally burden the right to vote and are supported by important regulatory interests. ......................26
4. The statutes are not preempted. ................................................30 C. Plaintiff’s complaint fails to state a claim upon which relief
may be granted regarding the “Voter Transportation Ban.” ...............32 1. The statutes are not vague.........................................................34 2. The statute only minimally burdens the right to speech
and association. .........................................................................35 3. The statute only minimally burdens the right to vote and
is supported by important regulatory interests..........................36 4. The statute is not preempted. ....................................................38 Conclusion and Relief Requested ............................................................................42 Certificate of Service ...............................................................................................42
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INDEX OF AUTHORITIES Page
Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................ 20, 29, 37 Anthony v. Michigan, 35 F. Supp. 2d 989 (E.D. Mich. 1999) .............. vii, 11, 13, 16 Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970) ....................17 Barrows v. Jackson, 346 U.S. 249 (1953) ...............................................................17 Burdick v. Takushi, 504 U.S. 428 (1992).......................................................... 19, 20 Burson v Freeman, 504 U.S. 191 (1992).................................................................37 City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007) ........................................17 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)...............................................11 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)..................................20 Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228
(1989) .................................................................................................................... 37 Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) .......................... vii, 11 Feldman v. Arizona Sec of State’s Office, 840 F.3d 1057 (9th Cir. 2016) ....... 25, 35 Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88 (1992) ..................................31 Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d
710 (6th Cir. 1995) ...............................................................................................14 Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533 (6th Cir. 2014) ...........21 Green Party of Tenn. v. Hargett (Hargett II), 791 F.3d 684 (6th Cir. 2015) ..........20 Kowalski v. Tesmer, 543 U.S. 125 (2004) ...............................................................18 Lance v. Coffman, 549 U.S. 437 (2007) ..................................................................16 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................. 10, 11, 15
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Munro v. Socialist Workers Party, 479 U.S. 189 (1986).........................................29 National Rifle Assoc. of America v. Magaw, 132 F.3d 272 (6th Cir.1997).............40 Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir.
2016) ........................................................................................................ 15, 27, 36 Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016) .........21 Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ...........................21 Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................29 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) 25, 35 Sheldon v. Grimes¸18 F. Supp. 3d 854 (ED Ky., 2014) ..........................................38 Singleton v. Wulff, 428 U.S. 106 (1976) ........................................................... vii, 18 Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011).. vii, 16 Storer v. Brown, 415 U.S. 724 (1974) .....................................................................20 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)................................. 11, 13 Tech & Crystal, Inc v. Volkswagen of Am, Inc., 2008 WL 2357643, at *3
(Mich. Ct. App., June 10, 2008)...........................................................................33 U.S. v Swisher, 811 F.3d 299 (9th Cir., 2016) .........................................................25 United States v. O’Brien, 391 U.S. 367 (1968) .......................................................25 United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189
(6th Cir.1988) .......................................................................................................41 Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State (Valley Forge), 454 U.S. 464 (1982) ..........................................................17 Voting for Am v. Steen, 732 F.3d 382 (5th Cir., 2013) ............................................25 Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)..................................................13
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Statutes Mich. Comp. Laws § 168.2(g) .................................................................................33 Mich. Comp. Laws § 168.759.......................................................................... passim Mich. Comp. Laws § 168.931.......................................................................... passim Mich. Comp. Laws § 169.201..................................................................................34 Mich. Comp. Laws § 169.206(1)(c).........................................................................34 Mich. Comp. Laws § 169.206(2)(f) .........................................................................34 Mich. Comp. Laws § 8.3a ........................................................................................33 Mich. Comp. Laws § 8.3l.........................................................................................33 Constitutional Provisions Mich. Const. 1963, art 2, § 4(2)...............................................................................29 Mich. Const. 1963, art. 2, § 4(1)(g) ...........................................................................3 Mich. Const. 1963, art. 2, §4(2)...............................................................................37 U.S. Const., Art. III, § 2...........................................................................................10
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether Plaintiffs’ complaint should be dismissed because they lack
standing to challenge Michigan’s Election Laws that have not been applied to them, their members, or people with whom they have any special relationship? 2. Whether Plaintiffs’ complaint should be dismissed because the complaint fails to state a claim as to the unconstitutionality of these statutes?
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.931(1)(f) Mich. Comp. Laws § 168.759(4), (5), (6), (7), and (8) Mich. Const. 1963, art. 2, § 4 Anderson v. Celebrezze, 460 U.S. 780 (1983). Burdick v. Takushi, 504 U.S. 428 (1992). City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007). Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014). Green Party v. Hargett, 700 F.3d 816 (6th Cir. 2012). Grayned v. City of Rockford, 408 U.S. 104 (1972). Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016). Singleton v. Wulff, 428 U.S. 106, 114 (1976). Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011). Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). United States v. Lanier, 520 U.S. 259 (1997). Valley Forge Christian Coll. v. Ams. United for Separation of Church & State (Valley Forge), 454 U.S. 464 (1982).
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STATEMENT OF FACTS Priorities USA (Priorities) is a 501(c)(4) nonprofit corporation and a “votercentric progressive advocacy and service organization.” (R. 17, Am. Compl., PgID 92, ¶ 7.) Its “mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives.” (Id.) It alleges that it engages in activity to “educate, mobilize, and turn out voters” in Michigan, and states that it “expects to” make expenditures and contributions towards those objectives in upcoming Michigan state and federal elections. (Id.) Priorities has not alleged that it is incorporated in Michigan, or that it has any members, much less members that reside or vote in Michigan. Plaintiff Rise Inc. (Rise) is also a 501(c)(4) nonprofit organization that “runs statewide advocacy and voter mobilization programs in Michigan and California, as well on a number of campuses nationwide.” (R. 17, PgID 93, ¶8). Rise alleges 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 population is a necessary condition to achieving its policy goals.” (Id.) Rise alleges that it launched its second state-specific campaign in Michigan in 2019, that it has eleven student organizers who are paid to organize their campuses including voter education and turnout activities, and that it plans to continue this program through the 2020 elections. (Id. at ¶9). Nonetheless, Rise has also not
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alleged that it is incorporated in Michigan, or that it has any members or members that reside or vote in Michigan.
Plaintiff Downriver/Detroit Chapter of the A. Philip Randolph Institute (DAPRI) is a local chapter of a national 501(c)(3) nonprofit organization. It alleges that it is a membership organization “with a mission to continue to fight for Human Equality and Economic Justice and to seek structural changes through the American democratic process.” (R. 17, PgID 95, ¶14). It alleges that it has members who are “involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in Michigan. (Id.) DAPRI does not identify any particular members who are affected by the challenged statutes. It does allege that its members have “provided rides” to and from the polls for the community on election day. (Id. at ¶16). However, there is no allegation that such rides are provided for a fee, or that the drivers are compensated in any way. DAPRI acknowledges that Proposal 3 makes absentee voting available to all, and that it would like to educate voters about the opportunity to vote absentee. (R. 17, PgID 96, ¶17).
Plaintiffs challenge several parts of Michigan’s Election Law that limit who may deliver a signed application for an absent voter ballot to a local clerk, in addition to a prohibition on paying for the transportation of voters to elections.
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A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications As amended by Proposal 3 in 2018, article 2, § 4 of the Michigan Constitution now provides that qualified electors shall have “[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.” Mich. Const. 1963, art. 2, § 4(1)(g). Section 4 continues to provide, as it has since 1963, that: [T]he legislature shall 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. [Id., art. 2, § 4(2)(emphasis added).] Section 759 of the Michigan Election Law prescribes the process for applying for an absent voter (AV) ballot. In order to receive an AV ballot, a voter must request an application for an AV ballot and submit that application to his or her local clerk. With respect to both primaries and regular elections, an elector may apply for an AV ballot at any time during the 75 days before the primary or election. Mich. Comp. Laws § 168.759(1)-(2). In both cases, “the elector shall apply in person or by mail with the clerk” of the township or city in which the elector is registered. Id. Subsection 759(3) provides that: (3) An application for an absent voter ballot under this section may be made in any of the following ways: (a) By a written request signed by the voter.
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(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.[1]
(c) On a federal postcard application.
(4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.
(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request. [M.C.L. §§ 168.759(3)-(5) (emphasis added).]
Where a form application is used, under § 759(5), the “application shall be
in substantially the following form,” which then provides the body of the form and
includes a general “warning” and a “certificate” portion for “a registered elector”
delivering a completed application for a voter. Mich. Comp. Laws § 168.759(5).
The warning must state that:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot
1 AV ballot applications are available online at https://www.michigan.gov/documents/sos/ AVApp_535884_7.pdf.
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applications at a location other than the clerk’s office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk's authorization to return your application. [Id.]
Similarly, the certificate for a registered elector returning an AV ballot
application must state that:
I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. [Id.]
Under § 759(6), the application form must include the following instructions
for an applicant:
Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the
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application. The person returning the application must sign and return the certificate at the bottom of the application. [M.C.L. § 168.759(6).] 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 assistant of the clerk is guilty of a misdemeanor.” Mich. Comp Laws § 168.759(8) (emphasis added). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931(1)(b)(iv) and (1)(n). Based on these provisions, there are two ways to apply for an AV ballot; (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning their written request or form application to their local clerk in person or by mail. Mich. Comp. Laws §§ 168.759(1), (2), (6). Clerks have also been instructed by the Department of State for a number of years to accept applications sent by facsimile and email.2 If a voter cannot appear in person to deliver their application or cannot mail their application or return it by email or facsimile, they may have an immediate family member deliver his or her application, or the person may request
2 See, e.g., Chapter 6, Michigan’s Absentee Voting Process, February 2019, p 2, available at https://www.michigan.gov/documents/sos/VI_Michigans _Absentee_Voting_Process_265992_7.pdf.
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another registered voter to return the application. Mich. Comp. Laws §§ 168.759(4), (5), (6).
Thus, only persons authorized by law, i.e. those described in § 759(4), may return a signed application for an AV ballot to a local clerk. Mich. Comp. Laws §§ 168.759(4)-(5). Defendant is not aware of any recent prosecutions under these provisions for the return of AV ballot applications.
Plaintiffs refer to these statutes as an “Absentee Ballot Organizing Ban,” and allege that they are “expending and diverting additional funds and resources” in get-out-the-vote (‘GOTV’), voter education efforts, mobilization, and turn out activities “at the expense of” other efforts in Michigan and in other states. (R. 17, Am. Compl., PgID 98, ¶ 25). Plaintiffs further allege that they are required to expend “additional resources” to educate their employees, volunteers, and partners about the statutes on how to comport their activities with the law. (Id.)
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections Mich. Comp. Laws § 168.931 provides, in part: (1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:
* * * (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. [Mich. Comp. Laws § 168.931(1)(f).]
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Under this provision, a person cannot pay for the transportation of a voter to the polls unless the voter is physically unable to walk to the election. 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.” Given its age, it is possible that people have been prosecuted under this statute, but Defendant has been unsuccessful in finding any cases involving a prosecution under § 931(1)(f).
Plaintiffs refers to § 931(1)(f) as a “Voter Transportation Ban,” and allege that they are “expending and diverting additional funds and resources” in get-outthe-vote (‘GOTV’), voter education efforts, mobilization, and turn out activities “at the expense of” other efforts in Michigan and in other states. (R. 17, Am. Compl., PgID 98, ¶ 25). Plaintiffs further allege that they are required to expend “additional resources” to educate their employees, volunteers, and partners about the statutes on how to comport their activities with the law. (Id.)
PROCEDURAL HISTORY This case was originally filed by Plaintiff Priorities USA on November 12, 2019. (R. 1, Cmplt, PageID #1-18.) On December 4, 2019, the Court entered a stipulated order granting a two-week extension for Attorney General Nessel to respond to the complaint. (R. 6, Stip. Dec. 5 Order, PageID #25-26.) On
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December 20, the Attorney General filed a motion to dismiss on grounds that Priorities USA lacked standing and the complaint failed to demonstrate that the challenged statutes violated any constitutional rights.
On December 23, 2019, the Court entered an order sua sponte in which the Court essentially invited Priorities USA to amend its complaint within 21 days if doing so would address the issues raised in the motion to dismiss. (R. 13, Dec. 23 Order, PageID #81-82.) On January 9, 2020, the Court entered a stipulated order granting Priorities USA a two-week extension, making their response or amended complaint due on January 24, 2020. (R. 15, Jan. 9 Order, PageID #84-85.)
On January 23, 2020, the parties stipulated to another extension for Priorities USA to respond to the motion to dismiss or file an amended complaint. (R. 16, Jan. 27 Order, PageID #86-87.) The order granted two additional business days, making the deadline January 28, 2020. Priorities USA filed an amended complaint on January 27, 2020 which added two new plaintiffs—Rise, Inc. and the Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI)—new allegations (increasing from 39 to 97 paragraphs) and four new legal claims. (R. 17, Am. Cmplt, PageID #88-128.)
On the same day, the identical plaintiffs filed another complaint against the Attorney General raising identical allegations and identical legal claims. (E.D. Mich Case No. 2:20-cv-10211, Priorities USA v. Nessel.) Plaintiffs immediately
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moved to consolidate the new lawsuit with this case. (R. 20, Motion to Consolidate, PageID #131-134.)
Also on January 28, 2020, Plaintiffs filed a motion for preliminary and permanent injunction and a motion for expedited consideration of the injunction, expedited discovery, and to consolidate the hearing of their motion for preliminary injunction with a trial on the merits. (R. 22, Mot. for PI; R. 23, Mot. to Expedite.) Defendant Nessel has responded to the motion to expedite (see R. 24), and to the motion to consolidate, (see R. 26).
Attorney General Nessel now moves to dismiss Plaintiffs’ Amended Complaint for the reasons set forth below.
ARGUMENT I. Plaintiffs’ complaint should be dismissed where they lack standing to
sue and the complaint otherwise fails to state a claim upon which relief may be granted. A. Plaintiffs lacks standing to sue because they have not plead a
sufficient injury-in-fact and cannot sue in a representational capacity. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const., Art. III, § 2. The doctrine of standing implements these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must show
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(1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–561 (internal quotation marks omitted). “ ‘The party invoking federal jurisdiction bears the burden of establishing’ standing.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-412 (2013) (internal citation omitted).
In order to establish organizational standing, a plaintiff organization, like the three plaintiffs here, must establish the three traditional elements of standing. See Fair Elections Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014). Here, none of the Plaintiffs have sufficiently pleaded an injury-in-fact to support standing.
1. Plaintiffs have not sufficiently alleged an injury-in-fact. An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan, 504 U.S. at 560 (some internal question marks omitted). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘ “substantial risk’ that the harm will occur.’ ” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 409, 414, n. 5) (emphasis deleted and internal quotation marks omitted) (emphasis added). Overlaying this analysis is the question of “when the threatened enforcement of a law creates an Article III injury.” Susan B. Anthony, 573 U.S. at 158. On this
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point, the U.S. Supreme Court observed that an actual arrest or prosecution is not
required, but enforcement must be imminent and the threat credible:
When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” [Id. at 158-59 (internal citations omitted) (emphasis added).] Thus, to establish injury-in-fact in a pre-enforcement case, as here, Plaintiffs
must demonstrate that they intend to engage in conduct that is constitutionally
protected, that their intended conduct is arguably proscribed by the statutes they
challenge, and last, that the threat of future enforcement of the challenged statutes
is “sufficiently imminent” or “substantial,” which they can do by demonstrating
that there is a “credible threat of prosecution” under the statutes, rather than an
“imaginary or speculative” threat. Id. at 158-59, 161-65.
Assuming, but not conceding, that Plaintiffs have alleged an intent to engage
in protected conduct, and that at least some of their intended conduct is caught by
the challenged statutes, Plaintiffs fail to sufficiently allege a credible threat of
prosecution. Instead, Plaintiffs allege only that the Voter Transportation Ban and
the Absentee Ballot Organizing Ban will harm them by having to expend and
divert additional funds to voter education and mobilization efforts and having to 12

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train their employees and volunteers on how to comply with the laws. (R. 17, Am. Compl., PgID 98-99, ¶ 24-25). Plaintiffs allege that because of these so-called Bans, they “will have to expend and divert additional funds and resources in GOTV efforts” in Michigan, and they “will also be prevented from fully exercising [their] associational rights to engage in these GOTV effort because of the Bans.” (R. 17, Am. Compl., PgID 98, ¶ 25).
But these alleged future injuries are not “certainly impending” nor does there appear to be a “substantial risk” that any actual harm will occur. Susan B. Anthony List, 573 U.S. at 158. The complaint is devoid of any reference to recent prosecutions or threatened prosecutions under § 931(1)(f) or under §§ 759(8), 931(1)(b)(iv), (n). The only specific instance Plaintiffs point to is a press release from Uber stating that it was not offering discounted rides to the polls in Michigan for the November 2018 general election. (R. 17, Am. Compl., PgID 105, ¶ 41). Plaintiffs alleges that “[u]pon information and belief, Uber did not provide Michigan citizens with discounted rides to polling places because of the Voter Transportation Ban.” (Id.) However, there is no allegation that Uber was threatened with prosecution under § 931(1)(f) in 2018.
Plaintiffs have not alleged facts sufficient to support a “credible threat of prosecution” under any of the statutes discussed above. See, e.g., Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (finding credible threat of
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enforcement where agency letter contained valid threat of enforcement). As a result, Plaintiffs have not sufficiently pled an injury-in-fact and thus lack standing to bring these claims.
Further, to the extent Plaintiffs allege they will have to “divert” resources to combat the effects of these statutes, (R. 17, Am. Compl., PgID 98, ¶ 25), this allegation also fails to show an injury-in-fact. The Sixth Circuit has previously rejected the “diversion of resources” theory in similar cases. In Fair Elections Ohio, 770 F.3d at 458, an organization conducting voter outreach sought to challenge a deadline for requesting an absent voter ballot on the theory that it prevented people jailed after the deadline and held through election day from exercising their right to vote. The Sixth Circuit held that the organization did not have standing because the organization had not shown an injury in fact. Id. at 459. The Court held that the organization had only an, “abstract social interest in maximizing voter turnout,” and that such abstract interests cannot confer Article III standing. Id. at 461 (citing Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 716-17 (6th Cir. 1995)). Moreover, Plaintiffs’ First Amendment and equal protection claims are primarily based on alleged injuries to individual voters and are untethered to its alleged injury of having to divert its resources.
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On the other hand, the Sixth Circuit also addressed the “diversion of resources” theory in Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016), where it found that the organization plaintiff had standing, but only because it had immediate plans to revise its voter education program to adapt to a recent change in law, and that a favorable decision enjoining the new laws would redress that injury. But that case is distinguishable from the situation Plaintiffs faces here, because there have been no recent changes in the law. Rather, these are long-existing laws. Just as in Fair Elections Ohio, Plaintiffs’ injuries are premised upon the rejected argument that they have standing “merely by virtue of its efforts and expense to advise others how to comport with the law, or by virtue of its efforts and expense to change the law.” 770 F.3d at 460.
Further, Plaintiffs Priorities USA and Rise Inc. also do not allege that they are comprised of members that include any Michigan voters, and they also do not sufficiently allege how they, as institutions, have been injured by the challenged provisions. Lujan, 504 U.S. at 560-61. In short, Plaintiffs do not allege how the Bans have injured it in a manner that could be distinguishable from an alleged hypothetical harm incurred by any actual voter within the State.
To the contrary, Plaintiffs raise only general grievances regarding what may occur to unidentified voters at some future time. Plaintiffs’ claims are similar to those considered and easily rejected by the Supreme Court, the Sixth Circuit, and
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this Court. See, e.g., Lance v. Coffman, 549 U.S. 437, 441 (2007) (“[S]tanding to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” (quotation omitted)); Miyazawa v. City of Cincinnati, 45 F.3d 126, 126-28 (6th Cir. 1995) (no standing for resident challenging city charter amendment when she had “suffered no harm, nor will she suffer any greater harm than that of any other voter in the City of Cincinnati”); Anthony v. Michigan, 35 F. Supp. 2d 989, 1003 (E.D. Mich. 1999) (no standing for Detroit citizens challenging consolidation of Detroit Recorder’s Court because plaintiffs did not “articulate how they [were] particularly harmed as a result of the merger”) (emphasis in original).
Plaintiffs simply have no standing to raise any claims challenging the statutes at issue, and so the Complaint must be dismissed.
2. Plaintiffs lack standing to sue in a representational capacity. Each of the three Plaintiffs appear to be attempting to invoke the rights of unidentified third-party individuals who are not a party to this suit. But, even in a representational capacity, Plaintiffs must still meet the prudential requirements for standing developed by the Supreme Court. Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State (Valley Forge), 454 U.S. 464, 474
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(1982)). First, a “plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties.” Valley Forge, 454 U.S. at 474 (internal quotation marks and citation omitted). Second, a plaintiff must present a claim that is “more than a generalized grievance.” City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007) (internal quotation marks omitted). Finally, the complaint must “fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Valley Forge, 454 U.S. at 475 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). “[E]ven when litigants have established a substantial injury from a government action, they ‘cannot challenge its constitutionality unless [they] can show that [they are] within the class whose constitutional rights are allegedly infringed.’” Smith, 641 F.3d at 207 (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953)).
Here, Plaintiffs are attempting to advance the legal rights of others, i.e. voters and other organizations who purportedly may be affected by the so-called Voter Transportation Ban and the Absentee Ballot Organizing Ban. In this respect, Plaintiffs have no particularized injury, and their constitutional rights are not affected by the challenged statutes.
It is true, however, that the Supreme Court has observed that its salutary rule against third-party standing is not absolute. Kowalski v. Tesmer, 543 U.S. 125, 129
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(2004). The rule “should not be applied where its underlying justifications are absent.” Singleton v. Wulff, 428 U.S. 106, 114 (1976). In deciding when not to apply this rule, the Supreme Court has considered “two factual elements”:
The first is the relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right’s enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Singleton, 428 U.S. at 114-15. “Elsewhere, the [Supreme] Court has described this test as requiring that ‘the party asserting the right has a ‘close’ relationship with the person who possesses the right,’ and that there is a ‘hindrance’ to the possessor’s ability to protect his own interests.’” Smith, 641 F.3d at 208 (citing Kowalski, 543 U.S. at 130). But in this case, Plaintiffs have neither alleged any “special relationship” to any person who might raise a claim that his or her rights have been violated by the Voter Transportation Ban or the Absentee Ballot Organizing Plan, nor identified any person by name. Moreover, there is no indication that such individuals are incapable of asserting their own rights. The underlying justifications against thirdparty standing thus apply, and Plaintiffs lacks the requisite standing to bring claims based on injuries to third-parties.
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Just as the Sixth Circuit observed in Fair Elections Ohio, 770 F.3d at 461, “[t]he plaintiffs are organizations and cannot vote; instead they assert the right to vote of individuals not even presently identifiable.” The Sixth Circuit rejected the exceptions to the rule against third party standing, finding that none applied. Id. There, just as here, the relationship between the plaintiff organization and the persons whom it seeks to help—unidentified, future voters—does not resemble the close relationship of the lawyer-client or doctor-patient relationships recognized by the Supreme Court. (Id.)
B. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Absentee Ballot Organizing Plan.”
Plaintiffs allege that the “Absentee Ballot Organizing Plan” statutes violate the First and Fourteenth Amendments because (1) the statutes are unconstitutionally vague and overbroad, (R. 17, Am. Compl., Count I, PgID 112114), (2) because they impermissibly infringe on Plaintiff’s speech and associational rights (Id., Count II, PgID 114-116), and (3), the statutes severely burden the right to vote, (Id., Count III, PgID 116-118). But Plaintiff’s allegations are without merit since they statutes are not vague and the statutes, at best, only minimally burden the right to vote or to speak and associate and are supported by important regulatory interests.
The “right to vote in any manner . . . [is not] absolute,” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted); the Constitution recognizes the states’
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clear prerogative to prescribe time, place, and manner restrictions for holding elections. U.S. Const. art. I, § 4, cl. 1. Indeed, there “must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Federal law thus generally defers to the states’ authority to regulate the right to vote. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203-04 (2008) (Stevens, J., op.) (recognizing that neutral, nondiscriminatory regulation will not be lightly struck down, despite partisan motivations in some lawmakers, so as to avoid frustrating the intent of the people’s elected representatives).
When a constitutional challenge to an election regulation requires courts to resolve a dispute concerning these competing interests, courts apply the AndersonBurdick analysis from Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, supra, which requires the following considerations:
[T]he court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. Finally, it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Green Party of Tenn. v. Hargett (Hargett II), 791 F.3d 684, 693 (6th Cir. 2015)(internal quotation marks and citations omitted). “Though the touchstone of
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Anderson-Burdick is its flexibility in weighing competing interests, the ‘rigorousness of [the court’s] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.’ ” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Burdick, 504 U.S. at 434).
If a state imposes “severe restrictions” on a plaintiff’s constitutional right to vote, its regulations survive only if “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434. But “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 of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016) (citing Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533, 546 (6th Cir. 2014), and quoting Burdick, 504 U.S. at 434). Regulations falling somewhere in between—“i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a ‘flexible’ analysis, ‘weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’ ” Ohio Democratic Party, 834 F.3d at 627 (quoting Hargett I, 767 F.3d at 546).
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1. The statutes are not vague. The Sixth Circuit has held that a statute should not be struck as facially vague only if the plaintiff has ‘demonstrated that the law is impermissibly vague in all of its applications.” Green Party v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012)(quoting Vill. Of Hoffman Estates v. Flipside, Hoffman Estates Inc.,455 U.S. 489, 497 (1982). The purpose of this doctrine is, “to ensure that both those who enforce a statute and those who must comply with it know what is prohibited,” and not “to convert into a constitutional dilemma the practical difficulties of crafting a law that is general enough to take into account a variety of human conduct yet specific enough to provide fair warning.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) and Colten v. Kentucky, 407 U.S. 104, 110 (1972)(internal quotation marks omitted)). Federal courts must construe challenged state statutes, whenever possible, so as “to avoid constitutional difficulty.” Id., (quoting Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir. 2006)). Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. Id. (quoting Chapman v. United States, 500 U.S. 453, 464 (1991)). Courts apply a two-part test to determine whether a law is unconstitutionally vague: first, the law must give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited, so that [they] may act accordingly[;]” and
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second, the standards of enforcement must be precise enough to avoid “involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.” Grayned, 408 U.S. at 108 (internal citation omitted); Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927), Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1105 (6th Cir. 1995)(quoting Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927)). In United States v. Lanier, the Supreme Court also observed that, “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered[.]” United States v. Lanier, 520 U.S. 259, 266 (1997). Also, any words not expressly defined in the statute will be interpreted according to their ordinary, contemporary, and common meaning. Deutsche Bank National Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010).
Plaintiffs allege that the prohibition against “soliciting or requesting” to return an absent ballot application is so vague as to be incapable of giving ordinary people fair notice of what conduct is being proscribed. (R. 17, Am. Compl., PgID 112-113, ¶57-58). Plaintiffs contend that it is somehow unclear if this includes a factual recitation of a voters right to request assistance with delivering an application. Plaintiffs’ vagueness argument in this regard borders on being frivolous.
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First, the conduct being prohibited is plain and clear—that is, it is prohibited to “solicit or request” to return an absent ballot application. Mich. Comp. Laws §168.759(4), (5). The words “solicit” and “request” are not ambiguous or vague, and are readily understood using their ordinary, contemporary, and common meaning. The statutes prohibit simply prohibit a person from asking to return an absent ballot application.
Second, even if the statutes could be applied to more conduct or speech than what they plainly state, they would still be constitutional because the Court could readily provide a limiting construction of the statute to include only the conduct that is encompassed within a common understanding of the words of the statute. Plaintiffs have failed to state a claim in Count I as to the unconstitutionality of these statutes.
2. The statutes only minimally burden the right to speech and association.
Plaintiffs argue that the AV ballot application statutes burden its speech and associational rights. Plaintiffs argues that it engages in political expression when it interacts with Michigan voters to encourage them to participate in the political process. (R. 17, Am. Compl., PgID 114, ¶ 62). That may be true, but that is not what is at issue here. Plaintiffs seek to assist voters by delivering their AV ballot applications to their local clerk. This act, however, is not speech.
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The U.S. Supreme Court has held that conduct is not “speech” whenever the person engaging in the conduct intends thereby to express an idea. See United States v. O’Brien, 391 U.S. 367, 376 (1968). Courts have held, for example, that ballot collecting is not presumptively expressive, Feldman v. Arizona Sec of State’s Office, 840 F.3d 1057 (9th Cir. 2016), en banc decision on other grounds, 843 F3d 366 (2016), because unlike burning an American flag or wearing a military medial, which “would reasonably be understood by the viewer to be communicative,” U.S. v Swisher, 811 F.3d 299, 311 (9th Cir. 2016) (internal citation omitted), ballot collection does not convey that type of expressive message. Indeed, ballot collecting does not acquire First Amendment protection just because it is carried out along with protected activities and speech. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (concluding that “combining speech and conduct” is not enough to create expressive conduct); Voting for Am v. Steen, 732 F.3d 382, 389 (5th Cir., 2013) (“The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech.”). Delivering AV ballot applications arguably falls into this category and is therefore not speech protected by the First Amendment.
But even if it was, as discussed above, any burden imposed by the AV ballot application statutes on Plaintiffs is minimal and outweighed by the State’s interest
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in preserving the integrity of the AV ballot application process. Moreover, Plaintiffs may assist voters by delivering their AV ballot applications, as long as the voters request Plaintiff’s assistance. Plaintiffs have thus failed to state a claim in Count II as to unconstitutionality of these statutes.
3. The statutes only minimally burden the right to vote and are supported by important regulatory interests.
Plaintiffs ground the burden to voters in the fact that third parties cannot assist a voter by delivering a voter’s AV ballot application to the local clerk unless the third party is a registered voter and the voter affirmatively requests the third party’s assistance. (R. 17, Am. Compl., PgID 109, ¶51). This is a correct statement of the law. But let’s recount the numerous ways voters can return their written requests or form applications to the local clerk; (1) in person, (2) by US mail or some other mail service, (3) by email, (4) by facsimile, (5) through inperson, mail, or other delivery by an immediate family member, which includes in-laws and grandchildren, (6) through in-person, mail, or other delivery by a person residing in the household with the voter, and (7) if none of those methods are available, through in-person, mail, or other delivery “by any registered elector.” Mich. Comp. Laws §§ 168.759(4)-(6).
There are six methods of delivery a voter may utilize before even getting to the “registered elector” option. And even then, the “registered elector” option does not burden voters. A voter can ask any registered elector in Michigan to deliver or
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return his or her application. If there is any burden it inures to the registered elector who may wish to assist a voter by delivering his or her application. This is because, as Plaintiffs note, the registered elector cannot solicit or request to deliver the application. Mich. Comp. Laws § 168.759(5). Rather, the voter must ask or request the registered elector to do so. But the law does not prohibit a registered elector from simply reading to, or giving a basic explanation of, the statutorily required instructions as to methods of delivery to a voter. If after doing so the voter requests that the registered elector return his or her form, and the registered elector completes the certificate, there is no violation of the law.
Thus, if Plaintiffs want to engage in GOTV activities in Michigan that include handing out blank AV ballot applications, Plaintiffs can staff the event with Michigan registered electors who can read the instructions regarding delivery to the voters, and staff can deliver forms for the voters if the voters thereafter ask staff to do so, and staff completes the certificate.
The burden on the right to vote itself here is non-existent, or at most, minimal. Indeed, Plaintiffs have not identified or alleged one single instance where any voter – elderly, a minority, economically disadvantaged or otherwise – was disenfranchised because he or she was unable to deliver his or her AV ballot application. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016) (determining it is error for a court to weigh “the burden that the
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challenged provisions uniquely place” on a subgroup of voters in the absence of “quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [those provisions].” While the “registered elector” option for delivery is slightly more involved than the other third-party options, e.g., delivery by family or a person residing in the household, there is a rational reason for this difference. With family members or persons in the household, the State assumes a relationship of trust or accountability between the voter and these third parties where the voter can be assured that his or her application has been properly delivered and can readily inquire as to that fact. And the State will assume, based on these relationships, that the application delivered to the local clerk was properly completed and delivered. In other words, that the identified voter does, in fact, wish to receive and vote an AV ballot.
Outside these relationships, the elements of trust and accountability are or may be reduced. For instance, if a voter attends a GOTV event sponsored by Plaintiff, the “registered elector” with whom a voter interacts may be a complete stranger. In that instance, the State requires more caution. It should be the voter who decides to entrust a stranger with delivering his or her application. And the State is less trusting as well, requiring that stranger to complete the certificate on
28

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the application form identifying himself or herself. That way if there are questions about the application, the local clerk can contact the voter or the registered elector.
Balanced against these minimally burdensome steps is the State’s important regulatory interest in protecting the integrity and security of the AV ballot process. Michigan’s Constitution expressly provides that the Legislature “shall enact laws . . . to preserve the purity of elections,” and to “guard against abuses of the elective franchise[.]” Mich. Const. 1963, art 2, § 4(2). The U.S. Supreme Court has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson 460 U.S. at 788, n. 9 (1983). In other words, it has recognized that a State has a compelling interest in ensuring that an individual’s right to vote is not undermined by fraud in the election process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”). And the Supreme Court has held that legislatures are permitted to respond to potential deficiencies in the electoral process with “foresight” rather than “reactively.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986).
Here, the requirements with respect to delivery by a “registered elector” protect both the voter and the process by helping to ensure that the voter’s application is properly delivered, and that the voter identified on an application for
29

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an AV ballot does in fact wish to obtain and vote by AV ballot. The very minimal
burden created by the requirements, even for elderly or economically
disadvantaged voters, is outweighed by the State’s important interest in protecting
the integrity of the AV ballot process. Plaintiffs have thus failed to state a claim in
Counts III as to unconstitutionality of these statutes.
4. The statutes are not preempted. Plaintiffs allege that the AV ballot application statutes conflict with § 208 of
the Voting Rights Act (VRA), 52 U.S.C. § 10508, and are thus preempted. (R. 17,
Am. Compl., PageID.118-121, ¶¶ 72-78). But there is no conflict between these
statutes and § 208 of the VRA and therefore, no preemption.
Section 208 provides: Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter's union. 52 U.S.C. § 10508 (emphasis added). The VRA defines the terms “vote” and
“voting” to include:
[A]ll action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
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52 U.S.C. § 10310. Plaintiffs argue that Mich. Comp. Laws, §§ 168.759(3) and (8) conflict with § 208 to the extent that the statutes prohibit a blind, disabled, or illiterate voter from requesting third parties, like Plaintiffs’ volunteers, from asking such voters if the volunteers may return their AV ballot applications. (R. 17, Am. Compl., PageID.118-121, ¶¶ 72-78).
Conflict preemption occurs where compliance with both a federal and state regulation is physically impossible, or “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992). Here, the statutes do neither. They do not prohibit a blind, disabled, or illiterate voter from being given assistance by a person of the voter’s choice. Section 208 clearly contemplates that it is the voter who is seeking the assistance. Section 759 likewise contemplates that it is the voter who will request someone else to return their AV ballot application. The prohibition against a person actively soliciting to return a voter’s application without a preceding request by the voter to do so does not conflict with the voter’s rights under § 208 to affirmatively seek assistance. Plaintiffs fail to state a claim as to Count IV.
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C. Plaintiff’s complaint fails to state a claim upon which relief may be granted regarding the “Voter Transportation Ban.”
Plaintiffs argue that Mich. Comp. Laws § 168.931(1)(f) is unconstitutional
under the First and Fourteenth Amendments, or is otherwise preempted, as to
federal elections, by 11 C.F.R. § 114.4.
This statute was originally enacted by 1895 P.A. 135, which provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any primary conducted hereunder, or who shall solicit any person to cast an unlawful vote at any primary, or who shall offer to any voter any money or reward of any kind, or shall treat any voter or furnish any entertainment for the purpose of securing such voter’s vote, support, or attendance at such primary or convention, or shall cause the same to be done, shall be deemed guilty of a misdemeanor.
By 1929, the additional language in the provision had been placed
elsewhere, and it simply provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any election or primary election conducted hereunder shall be deemed guilty of a misdemeanor. [M.C.L. 1929, § 3298.]
And finally, it was amended3 to its current version:
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. [Mich. Comp. Laws § 168.931(1)(f) (emphasis added)].
3 See1982 P.A. 201 and 1995 P.A. 261. 32

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The Michigan Election Law does not define “person.” But Mich. Comp. Laws § 8.3l 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.” But 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 of Am, Inc., 2008 WL 2357643, at *3 (Mich. Ct. App., June 10, 2008), quoting Random House Webster’s College Dictionary (1997). However, it does define “[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 nominate by ballot an individual for public office or decide a ballot question lawfully submitted to them.” Mich. Comp. Laws § 168.2(g).
Under this provision, a person cannot engage the service of a vehicle for a fee to transport a voter to an election unless the voter is physically unable to walk to the election. The statute does not otherwise prohibit a person from paying for expenses incurred in transporting a voter by vehicle so long as it does not amount
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to hiring for the service.4 And it does not prohibit a person from providing a voter
with free transportation to an election.
1. The statute is not vague. As argued above, courts avoid striking statutes as facially vague as long as
they are capable of being interpreted in a manner that is constitutional. Hargett,
supra, 700 F.3d at 825. Just as with their arguments concerning the return of AV
ballot applications, Plaintiffs’ arguments regarding the “Voter Transportation Ban”
are similarly flawed. Here, Plaintiffs contend that the statute is vague because it is
not clear what it means to “hire a motor vehicle.” (R. 17, Am. Compl., PgID 121-
122, ¶80-81.
Again, the words of the statute are understandable by a person of ordinary
intelligence according to the common meaning of the words. As noted above,
“hire” is defined in the dictionary as meaning “to engage the services of for wages
or other payment,” or alternatively, “to engage the temporary use of at a set price.”
4 Such expenses, however, may have to be reported. Michigan’s Campaign Finance Act, Mich. Comp. Laws § 169.201 et seq., includes within the definition of a reportable “expenditure” an “expenditure made for . . . transporting voters to the polls,” Mich. Comp. Laws § 169.206(1)(c), unless it is “[a]n expenditure for . . . nonpartisan get-out-the-vote activities made by an organization that is exempt from federal income tax under section 501(c)(3) of the internal revenue code, 26 USC 501[.]” Mich. Comp. Laws § 169.206(2)(f). Plaintiffs Priorities USA and Rise Inc. are not entitled to the reporting exemption because they are 501(c)(4) corporations. But DAPRI is a 501(c)(3) corporation and would be entitled to the exemption.
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Tech & Crystal, Inc., 2008 WL 2357643, at *3 (quoting Random House Webster’s College Dictionary (1997)). In either sense, the critical factor is the provision of services or use for a fee. Also, the statute prohibits hiring conveyances “for voters,” which necessarily contemplates acting on behalf of others, not oneself. Plaintiffs’ alleged concerns—i.e. volunteers, gas money, or a voter paying for a taxi for themselves—are unfounded and not rooted in a reasonable reading of the statute. Notably, there is no allegation that such an enforcement has been threatened, and the Attorney General can find no record of such a prosecution ever having occurred. And, as discussed above, even if such an application could be construed from the language of the statute, the statute would still be constitutional so long as the Court could limit the construction of the statute to only the conduct that is clearly included.
2. The statute only minimally burdens the right to speech and association.
Plaintiffs argue that § 931(1)(f) impermissibly infringes on its speech and associational rights. (R. 17, Am. Compl., PgID 122-124, ¶84-88). But driving a voter to an election or arranging for the voter to be driven to an election, like the delivery of AV ballot applications, is not speech. See, e.g., O’Brien, 391 U.S. at 376; Feldman, 840 F.3d 1057; Rumsfeld, 547 U.S. at 66; Voting for Am, 732 F.3d at 389. But even if it was, as explained above, any burden imposed by § 931(1)(f) on Plaintiffs is minimal and outweighed by the State’s important interest in
35

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protecting voters from undue influence, which helps preserve the integrity of Michigan’s elections. Plaintiffs thus fail to state a claim in Count VI as to the unconstitutionality of § 931(1(f).
3. The statute only minimally burdens the right to vote and is supported by important regulatory interests.
Plaintiffs argue that § 931(1)(f) severely burdens the right to vote because by prohibiting paid drivers the statute reduces the number of drivers able to transport voters, particularly elderly and minority voters, to the polls for an election.
But § 931(1)(f) does not severely burden the right to vote. Surely if this was true Plaintiffs could identify at least one instance in which a voter was disenfranchised because he or she was unable to obtain transportation to the polls. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016). Notably, as a result of the passage of Proposal 3 in 2018, all qualified electors have “[t]he right, once registered, to vote an absent voter ballot without giving a reason[.]” Mich. Const. 1963, art. 4, § 1(g). Once registered, all voters can vote an AV ballot at all future elections. And the process for obtaining an AV ballot is simple, as discussed above. Voters who do not have or cannot obtain transportation to an election can avail themselves of the AV ballot process.
And if a voter cannot vote an AV ballot for some reason, he or she can still receive free transportation from family, friends, or volunteers of organizations such as churches, labor organizations, and party organizations, or numerous other
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organizations or entities, including Plaintiffs. Indeed, this case is principally about transporting physically able voters to the polls. Under the plain language of § 931(1)(f), Plaintiffs may provide these voters with free rides to an election or it may assist voters in obtaining free rides to an election. Moreover, Plaintiffs can incentivize volunteer drivers by offering to cover their expenses, such as the cost of gas. Ultimately, any secondary burden on voters, who are not the target of § 931(1)(f), is minimal.
Balanced against these minimal burdens is the State’s interest in preserving the integrity of its elections. See Mich. Const. 1963, art. 2, §4(2); Anderson, 460 U.S. at 788, n. 9. As is plain from the original language of § 931(1)(f), and is true today, the purpose of the prohibition is to protect voters against undue influence. Or more specifically, it is to prevent “quid pro quo” arrangements that may occur when money is exchanged and voters might perceive that they are being offered something of value in exchange for a vote in favor of the candidates or proposals supported by the individual or organization who hired the transportation. This is an important, if not compelling, State interest and Plaintiffs have not sufficiently alleged that the State’s interest does not outweigh the minimal burden on voting rights. See Burson v Freeman, 504 U.S. 191, 199 (1992) (citing Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228, 229 (1989) (explaining that a State has a compelling interest in protecting voters from undue
37

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influence); Sheldon v. Grimes¸18 F. Supp. 3d 854 (ED Ky., 2014) (state’s interest in protecting absentee voters from undue influence weighed against granting injunction). Plaintiffs thus fails to state a claim in Count VII as to the unconstitutionality of § 931(1(f).
4. The statute is not preempted. Plaintiffs alleges that the statute is preempted by 11 C.F.R. § 114.4 and that Attorney General Nessel should be enjoined from enforcing it with respect to federal elections. (R. 17, Am. Compl., PgID 126, ¶¶ 94-97). Plaintiffs allege the statute is expressly preempted or preempted because it conflicts with federal law. Id., PgID 126, ¶ 97. Federal law may preempt state law either expressly or impliedly. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152–53 (1982). Express preemption exists where a federal statute or regulation contains explicit language indicating that a specific type of state law is preempted. Id. at 153. See also State Farm Bank v. Reardon, 539 F.3d 336, 341–42 (6th Cir. 2008). And as noted above, conflicts preemption exists “where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade, 505 U.S. at 98.
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But here the federal regulation does not expressly prohibit § 931(1)(f), and there is no conflict between 11 C.F.R. § 114.4 and § 931(1)(f), and therefore, no preemption.
11 C.F.R. § 114.4(d)(1) provides: Voter registration and get-out-the-vote drives permitted. A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at employees outside its restricted class and the general public. Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration. [Emphasis added.] The federal statute does not define the word provid[ing], but the American Heritage Dictionary defines it as 1. To furnish; supply. 2. To make ready; prepare. 3. To make available; afford. American Heritage Dictionary (2nd Ed, 1982). Even as to state elections where there is a federal candidate on the ballot, § 931(1)(f) does not conflict with 11 C.F.R. § 114.4. The federal provision allows Plaintiffs to provide transportation to the polls. Consonant with that, the state provision allows Plaintiffs to themselves provide transportation to the polls. They can utilize its employees or rally volunteers. They simply cannot “hire” or pay a person or entity to transport voters to the polls, unless the voters are physically unable to walk to the polls. Plaintiffs argue that in most instances, organizations will “hire individuals to drive.” (R. 17, Am. Compl, PgID 107, ¶ 47.) But the federal statute does not guarantee Plaintiffs the right to “hire” or pay a person or entity to transport voters, only the opportunity to “provide” transportation. And
39

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because the challenged state statute allows Plaintiffs to “provide” transportation to the polls, there is no conflict preemption. Plaintiffs have failed to state a claim as to Count VIII.
D. The Court lacks jurisdiction to issue a declaratory judgment. “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases' and ‘controversies.’ U.S. Const. art. III, § 2. The threshold question in every federal case is whether the court has the judicial power to entertain the suit.” National Rifle Assoc. of America v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). “In an attempt to give meaning to Article III's ‘case or controversy’ requirement, the courts have developed a series of principles termed ‘justiciability doctrines.’ ” Id. Those doctrines include both standing and ripeness. 5 “Article III standing requires a litigant to have suffered an injury-in-fact, fairly traceable to the defendant's allegedly unlawful conduct, and likely to be redressed by the requested relief.” Id. Plaintiffs bring this suit under the Declaratory Judgment Act, “which provides the mechanism for seeking pre-enforcement review of a statute.” Id. Declaratory judgments are typically sought before a completed “injury-in-fact” has occurred but must still be limited to the resolution of an “actual controversy.” Id. When requesting declaratory relief, a plaintiff “must show actual present harm or a significant probability of future harm in order to demonstrate the need for pre-
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enforcement review.” Id. “To determine whether a plaintiff has standing to adjudicate an ‘actual controversy,’ requisite for relief under the Declaratory Judgment Act, one must ask whether the parties have ‘adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment’ even though the injury-in-fact has not yet been completed.” Id. at 280. “A case is ripe for pre-enforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of ‘sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Id. at 284.
Here, as discussed above in the context of standing, Plaintiffs have not sufficiently alleged that a prosecution by the Attorney General, or any local prosecutor for that matter, is imminent or likely to come to pass under § 931(1)(f) or § 759(3)(8). See United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir.1988) (articulating factors to consider regarding ripeness). Nor is the factual record in this case sufficiently developed to permit a fair and complete hearing as to Plaintiffs’ prospective claims as to these statutes. Id. And finally, no significant hardship will occur to Plaintiffs should this Court refuse to consider these prospective claims. Id.
For these reasons, Plaintiffs claims are not ripe for review and this Court should dismiss the amended complaint.
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CONCLUSION AND RELIEF REQUESTED For the reasons discussed above, Plaintiffs each lack standing to raise the

claims alleged in the amended complaint. Alternatively, the amended complaint

fails to state a claim upon which relief may be granted. For either reason, the

amended complaint should be dismissed in its entirety.

Respectfully submitted,

Dated: February 10, 2020

s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

42

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 22 filed 01/28/20 PageID.139 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
JUDGE MARK A. GOLDSMITH
MAGISTRATE JUDGE R. STEVEN WHALEN
MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute move for a preliminary and permanent injunction against the enforcement of (1) the Absentee Ballot Organizing Ban codified at Michigan Compiled Laws § 168.759(4), (5), (8), and (2) the Voter Transportation Ban codified at Michigan Compiled Laws § 168.931(1)(f). The undersigned counsel certifies that counsel communicated in writing with opposing counsel, explaining the nature of the relief to be sought by way of this motion and seeking concurrence in the relief; opposing counsel thereafter expressly denied concurrence.
The Absentee Ballot Organizing Ban and Voter Transportation Ban restrict efforts to empower and mobilize voters to participate in the electoral process and

Case 4:19-cv-13341-SDD-RSW ECF No. 22 filed 01/28/20 PageID.140 Page 2 of 4
thereby curb the efforts of organizations like Plaintiffs to build political power within their constituent communities. The laws regulate core political expression imprecisely and without adequate justification, and in conflict with federal law. They also make it more difficult for individuals to vote in Michigan by reducing transportation options and the pool of persons who can assist voters in voting.
With the 2020 election less than 10 months away, the continued enforcement of the Absentee Ballot Organizing Ban and the Voter Transportation Ban irreparably injures Plaintiffs by requiring them to abstain from engaging in constitutionally protected political expression. Therefore, an injunction preventing enforcement of the laws would promote the public interest in “robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp. (SMART), 698 F.3d 885, 896 (6th Cir. 2012). Finally, an injunction would not cause substantial harm to Defendant Attorney General Nessel or others. Accordingly, Plaintiffs request a preliminary injunction against enforcement of the Absentee Ballot Organizing Ban and the Voter Transportation Ban. Plaintiffs submit the attached brief and affidavits in support of their motion. Plaintiffs have contemporaneously filed a motion to consolidate the court’s decision on the preliminary injunction with a trial on the merits and therefore also request a permanent injunction and declaratory judgment.
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Case 4:19-cv-13341-SDD-RSW ECF No. 22 filed 01/28/20 PageID.141 Page 3 of 4

Dated: January 28, 2020
Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

Respectfully submitted,
By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

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Case 4:19-cv-13341-SDD-RSW ECF No. 22 filed 01/28/20 PageID.142 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on January 28, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that it is the appropriate length. Local Rule 7.1(d)(3).
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 29 filed 02/11/20 PageID.438 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, et al.,

Case No. 19-13341

Plaintiffs, v.

Stephanie Dawkins Davis United States District Judge

DANA NESSEL,

Defendant. ________________________/

ORDER DENYING MOTION TO DISMISS AS MOOT (ECF No. 10), DENYING MOTION TO EXPEDITE WITHOUT
PREJUDICE (ECF No. 23), AND SETTING BRIEFING SCHEDULE ON MOTION TO DISMISS (ECF No. 27)

Defendant Dana Nessel filed a motion to dismiss in the above-captioned

action on December 20, 2019. (ECF No. 10). This motion raised an issue

regarding, among other things, a purported insufficiency of the pleadings under

Federal Rule of Civil Procedure 8 and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The

Court issued an Order on December 23, 2019 allowing plaintiff Priorities USA to

file an amended complaint in light of Nessel’s motion. (ECF No. 13). Without

expressing any view on the merits of the motions to dismiss, the Court stated that

“[i]f Plaintiff timely files an amended complaint, the Court will deny without

prejudice the currently pending motion to dismiss as moot.” Id.

On January 27, 2020, Priorities USA timely filed an amended complaint,

which, amongst other things, added two additional plaintiffs, Rise, Inc. and the

1

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Detroit/Downriver Chapter of the A. Philip Randolph Institute. (ECF. No. 17).

Thus, consistent with the court’s December 23, 2019 order allowing for the filing

of the amended complaint, the Court DENIES without prejudice the

aforementioned motion to dismiss. (ECF No. 10).

On February 10, 2020 Nessel filed a motion to dismiss the amended

complaint. (ECF No. 27). A number of the stated grounds for dismissal in the

newly filed motion remain the same as those set forth in the original motions to

dismiss. Thus, plaintiffs having had the opportunity to consider these previously

aired grounds in drafting their amended complaint, a streamlined briefing schedule

can be accomplished. Plaintiffs must file their response by February 24, 2020 and

defendant must file a reply by February 28, 2020.

Plaintiffs have moved for expedited consideration of their motion for

preliminary injunction, including a proposed discovery and briefing schedule, and

proposal for a combined hearing and trial. (ECF No. 23). The Court DENIES this

motion without prejudice given the changed posture of the proceedings. In the

interests of judicial economy and efficiency, the Court will first resolve the motion

to dismiss on an expedited basis, before developing a discovery, briefing, and trial

schedule on the merits of plaintiffs’ amended complaint.

IT IS SO ORDERED.

Date: February 11, 2020

s/Stephanie Dawkins Davis Stephanie Dawkins Davis United States District Judge

2

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 30 filed 02/18/20 PageID.440 Page 1 of 53

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC.,

DETROIT/DOWNRIVER CHAPTER OF No. 19-13341

THE A. PHILIP RANDOLPH

INSTITUTE,

HON. STEPHANIE DAWKINS

DAVIS

Plaintiffs,

MAG. R. STEVEN WHALEN

v

DEFENDANT ATTORNEY

DANA NESSEL, in her official capacity GENERAL DANA NESSEL’S

as the ATTORNEY GENERAL OF THE RESPONSE IN OPPOSITION TO

STATE OF MICHIGAN,

PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

Defendant.

__________________________________/

Sarah S. Prescott (P70510)

Kevin J. Hamilton

Attorney for Plaintiffs

Attorney for Plaintiffs

105 East Main Street

1201 Third Ave, Suite 4900

Northville, Michigan 48168

Seattle, Washington 98101

248.679.8711

206.359.9741

Heather S. Meingast (P55439)

Marc E. Elias

Erik A. Grill (P64713)

Attorney for Plaintiffs

Assistant Attorneys General

607 Fourteenth St, NW

Attorneys for Defendant

Washington, DC 20005

P.O. Box 30736

202.628.6600

Lansing, Michigan 48909

517.335.7659

/

DEFENDANT ATTORNEY GENERAL DANA NESSEL’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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CONCISE STATEMENT OF ISSUES PRESENTED
1. Whether Plaintiffs’ motion for preliminary injunctive relief should be denied where there is not a likelihood of success and no demonstration of irreparable harm?
CONTROLLING OR MOST APPROPRIATE AUTHORITY Anderson v. Celebrezze, 460 U.S. 780 (1983) Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) Buckley v. Valeo, 424 U.S. 1 (1976) Burdick v. Takushi, 504 U.S. 428 (1992) Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982) Gade v. Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88 (1992) Grayned v. City of Rockford, 408 U.S. 104 (1972) Green Party v. Hargett, 700 F.3d 816 (6th Cir. 2012) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Mason Co. v. Dep’t of Community Health, 820 N.W.2d 192 (2011) National Rifle Assoc. of America v. Magaw, 132 F.3d 272 (6th Cir.1997) Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016) Ohio Republican Party v. Brunner, 543 F.3d 357 (6th Cir. 2008) Purcell v. Gonzalez, 549 U.S. 1 (2006) Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) Sampson v. Murray, 415 U.S. 61 (1974) Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011) Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) United States v. O’Brien, 391 U.S. 367 (1968)
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TABLE OF CONTENTS
Page
Concise Statement of Issues Presented ...................................................................... i
Controlling or Most Appropriate Authority............................................................... i
Table of Contents ...................................................................................................... ii
Statement of Facts......................................................................................................1
A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications ............................................................................................ 3
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections........7
Procedural History .....................................................................................................8
Argument.................................................................................................................. 10
I. Plaintiffs’ motion for preliminary injunctive relief should be denied where they have not shown a likelihood of success on the merits or imminent irreparable harm. ...........................................................................10
A. Preliminary injunction factors.............................................................10
B. Plaintiffs have not shown a strong likelihood of success on the merits. ..................................................................................................12
1. Plaintiffs are not likely to prevail on the merits because they have not pled a sufficient injury-in-fact and cannot sue in a representational capacity. ............................................12
2. Plaintiffs are not likely to prevail on their claims because the Court lacks jurisdiction to issue a declaratory judgment. ................................................................................... 20
3. Plaintiffs have not shown a likelihood of success on the merits regarding the Absentee Ballot Organizing Ban. ............22
4. Plaintiffs’ complaint fails to state a claim upon which relief may be granted regarding the Voter Transportation Ban. ...........................................................................................35
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C. Plaintiffs have not demonstrated irreparable injury............................46 D. An injunction will cause irreparable harm to the State.......................47 E. An injunction is not in the public interest. ..........................................47 Conclusion and Relief Requested ............................................................................48 Certificate of Service ...............................................................................................49
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STATEMENT OF FACTS Priorities USA (Priorities) is a 501(c)(4) nonprofit corporation and a “votercentric progressive advocacy and service organization.” (R. 17, Am. Compl., PgID 92, ¶ 7.) Its “mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives.” (Id.) It alleges that it engages in activity to “educate, mobilize, and turn out voters” in Michigan, and states that it “expects to” make expenditures and contributions towards those objectives in upcoming Michigan state and federal elections. (Id.) Priorities has not alleged that it is incorporated in Michigan, or that it has any members, much less members that reside or vote in Michigan. Plaintiff Rise Inc. (Rise) is also a 501(c)(4) nonprofit organization that “runs statewide advocacy and voter mobilization programs in Michigan and California, as well on a number of campuses nationwide.” (R. 17, PgID 93, ¶8). Rise alleges 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 population is a necessary condition to achieving its policy goals.” (Id.) Rise alleges that it launched its second state-specific campaign in Michigan in 2019, that it has eleven student organizers who are paid to organize their campuses including voter education and turnout activities, and that it plans to continue this program through the 2020 elections. (Id. at ¶9). Nonetheless, Rise has also not
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alleged that it is incorporated in Michigan, or that it has any members or members that reside or vote in Michigan.
Plaintiff Downriver/Detroit Chapter of the A. Philip Randolph Institute (DAPRI) is a local chapter of a national 501(c)(3) nonprofit organization. It alleges that it is a membership organization “with a mission to continue to fight for Human Equality and Economic Justice and to seek structural changes through the American democratic process.” (R. 17, PgID 95, ¶14). It alleges that it has members who are “involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in Michigan. (Id.) DAPRI does not identify any particular members who are affected by the challenged statutes. It does allege that its members have “provided rides” to and from the polls for the community on election day. (Id. at ¶16). However, there is no allegation that such rides are provided for a fee, or that the drivers are compensated in any way. DAPRI acknowledges that Proposal 3 makes absentee voting available to all, and that it would like to educate voters about the opportunity to vote absentee. (R. 17, PgID 96, ¶17).
Plaintiffs challenge several parts of Michigan’s Election Law that limit who may deliver a signed application for an absent voter ballot to a local clerk, in addition to a prohibition on paying for the transportation of voters to elections.
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A. Mich. Comp. Laws § 168.759 – Absent voter ballot applications As amended by Proposal 3 in 2018, the Michigan Constitution now provides that qualified electors shall have “[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.” Mich. Const. 1963, art. 2, § 4(1)(g). Section 4 continues to provide, as it has since 1963, that: [T]he legislature shall 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. [Id., art. 2, § 4(2)(emphasis added).] Section 759 of the Michigan Election Law prescribes the process for applying for an absent voter (AV) ballot. In order to receive an AV ballot, a voter must request an application for an AV ballot and submit that application to his or her local clerk. With respect to both primaries and regular elections, an elector may apply for an AV ballot at any time during the 75 days before the primary or election. Mich. Comp. Laws § 168.759(1)-(2). In both cases, “the elector shall apply in person or by mail with the clerk” of the township or city in which the elector is registered. Id. Subsection 759(3) provides that: (3) An application for an absent voter ballot under this section may be made in any of the following ways: (a) By a written request signed by the voter.
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(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.[1]
(c) On a federal postcard application.
(4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.
(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request. [M.C.L. §§ 168.759(3)-(5) (emphasis added).]
Where a form application is used, under § 759(5), the “application shall be
in substantially the following form,” which then provides the body of the form and
includes a general “warning” and a “certificate” portion for “a registered elector”
delivering a completed application for a voter. Mich. Comp. Laws § 168.759(5).
The warning must state that:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An
1 AV ballot applications are available online at https://www.michigan.gov/documents/sos/ AVApp_535884_7.pdf.
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assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk’s office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk's authorization to return your application. [Id.]
Similarly, the certificate for a registered elector returning an AV ballot application
must state that:
I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. [Id.]
Under § 759(6), the application form must include the following instructions for an
applicant:
Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
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(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application. [M.C.L. § 168.759(6).] 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 assistant of the clerk is guilty of a misdemeanor.” Mich. Comp Laws § 168.759(8) (emphasis added). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931(1)(b)(iv) and (1)(n). Based on these provisions, there are two ways to apply for an AV ballot; (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning their written request or form application to their local clerk in person or by mail. Mich. Comp. Laws §§ 168.759(1), (2), (6). Clerks have also been instructed by the Department of State for a number of years to accept applications sent by facsimile and email. (Ex 1., Chapter 6, Michigan’s Absentee Voting Process, February 2019, p 2). If a voter cannot appear in person to deliver their application or cannot mail their application or return it by email or facsimile, they may have an immediate family member deliver his or her application, or the person may request
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another registered voter to return the application. Mich. Comp. Laws §§ 168.759(4), (5), (6).
Thus, only persons authorized by law, i.e. those described in § 759(4), may return a signed application for an AV ballot to a local clerk. Mich. Comp. Laws §§ 168.759(4)-(5). Attorney General Nessel is not aware of any recent prosecutions under these provisions for the return of AV ballot applications.
Plaintiffs refer to these statutes as an “Absentee Ballot Organizing Ban,” and allege that they are “expending and diverting additional funds and resources” in get-out-the-vote (‘GOTV’), voter education efforts, mobilization, and turn out activities “at the expense of” other efforts in Michigan and in other states. (R. 17, Am. Compl., PgID 98, ¶ 25). Plaintiffs further allege that they are required to expend “additional resources” to educate their employees, volunteers, and partners about the statutes on how to comport their activities with the law. (Id.)
B. Mich. Comp. Laws § 168.931 – Transporting voters to elections Mich. Comp. Laws § 168.931 provides, in part: (1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:
* * * (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. [Mich. Comp. Laws § 168.931(1)(f).]
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Under this provision, a person cannot pay for the transportation of a voter to the polls unless the voter is physically unable to walk to the election. 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.” Given its age, it is possible that people have been prosecuted under this statute, but Attorney General Nessel has been unsuccessful in finding any cases involving a prosecution under § 931(1)(f).
Plaintiffs refers to § 931(1)(f) as a “Voter Transportation Ban,” and allege that they are “expending and diverting additional funds and resources” in get-outthe-vote (‘GOTV’), voter education efforts, mobilization, and turn out activities “at the expense of” other efforts in Michigan and in other states. (R. 17, Am. Compl., PgID 98, ¶ 25). Plaintiffs further allege that they are required to expend “additional resources” to educate their employees, volunteers, and partners about the statutes on how to comport their activities with the law. (Id.)
PROCEDURAL HISTORY This case was originally filed by Plaintiff Priorities USA on November 12, 2019. (R. 1, Cmplt, PgID #1-18.) On December 4, 2019, the Court entered a stipulated order granting a two-week extension for Attorney General Nessel to respond to the complaint. (R. 6, Stip. Dec. 5 Order, PgID #25-26.) On December
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20, the Attorney General filed a motion to dismiss on grounds that Priorities USA lacked standing and the complaint failed to demonstrate that the challenged statutes violated any constitutional rights.
On December 23, 2019, the Court entered an order sua sponte in which the Court invited Priorities USA to amend its complaint within 21 days if doing so would address the issues raised in the motion to dismiss. (R. 13, Dec. 23 Order, PgID #81-82.) On January 9, 2020, the Court entered a stipulated order granting Priorities USA a two-week extension, making their response or amended complaint due on January 24, 2020. (R. 15, Jan. 9 Order, PgID #84-85.)
On January 23, 2020, the parties stipulated to another extension for Priorities USA to respond to the motion to dismiss or file an amended complaint. (R. 16, Jan. 27 Order, PgID #86-87.) Priorities USA filed an amended complaint on January 27, 2020 which added two new plaintiffs—Rise, Inc. and the Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI)—new allegations (increasing from 39 to 97 paragraphs) and four new legal claims. (R. 17, Am. Cmplt, PgID #88-128.)
On the same day, the identical plaintiffs filed another complaint against Attorney General Nessel raising identical allegations and identical legal claims. (E.D. Mich Case No. 2:20-cv-10211, Priorities USA v. Nessel.) Plaintiffs
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immediately moved to consolidate the new lawsuit with this case. (R. 20, Motion to Consolidate, PgID #131-134.)
Also, on January 28, 2020, Plaintiffs filed a motion for preliminary and permanent injunction and a motion for expedited consideration of the injunction, expedited discovery, and to consolidate the hearing of their motion for preliminary injunction with a trial on the merits. (R. 22, Mot. for PI; R. 23, Mot. to Expedite.) Attorney General Nessel responded to the motion to expedite (see R. 24), and to the motion to consolidate, (see R. 26). The Court denied the Attorney General’s first motion to dismiss as moot, denied Plaintiffs’ motion to expedite without prejudice, and set a briefing schedule regarding the Attorney General’s second motion to dismiss. (R. 29, Order 2/11/20). The Court also denied Plaintiffs’ motion to consolidate the two cases the same day by text order. The Attorney General now submits her timely response to the motion for preliminary injunction.
ARGUMENT I. Plaintiffs’ motion for preliminary injunctive relief should be denied
where they have not shown a likelihood of success on the merits or imminent irreparable harm. A. Preliminary injunction factors. Preliminary injunctive relief “is an extraordinary measure that has been characterized as ‘one of the most drastic tools in the arsenal of judicial remedies.’” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001). It is well settled that a
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preliminary injunction will be granted only upon a clear showing of substantial likelihood of success on the merits at trial and irreparable injury if the defendant is not restrained. Corning Glass Works v. Lady Cornella, Inc., 305 F. Supp. 1229 (E.D. Mich. 1969). A movant must meet an even higher standard for relief where—as here—the injunction will alter rather than maintain the status quo or where the injunction will provide the movant with substantially all the relief sought during the trial on the merits. See generally Huron Valley Pub. Co. v. Booth Newspapers, Inc., 336 F. Supp. 659 (E.D. Mich. 1972); Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2nd Cir. 1995).
Courts consider four factors in determining whether to grant a temporary or preliminary injunction: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir. 2012). In First Amendment cases, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits.” Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007) (internal citations and quotations omitted). This is because the public’s interest and any potential harm to the parties or others “largely depend on the constitutionality of the [state action].” Id.
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B. Plaintiffs have not shown a strong likelihood of success on the merits.
The Sixth Circuit has long held that in determining whether to grant a preliminary injunction, the movant must show a “strong likelihood of success on the merits.” See e.g. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008); NEOCH v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Summit County Democratic Cent. & Exec Comm. v. Blackwell, 388 F.3d 547, 550 (6th Cir. 2004). In their Amended Complaint, Plaintiffs bring eight counts, in which they allege that particular Michigan laws are vague, that the laws violate First Amendment rights of speech and association, that they burden the right to vote, and finally that they are superseded or preempted by federal law. For the reasons below, none of these claims has a strong likelihood of success on the merits.
1. Plaintiffs are not likely to prevail on the merits because they have not pled a sufficient injury-in-fact and cannot sue in a representational capacity.
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const., Art. III, § 2. The doctrine of standing implements these constitutional limits by “identify[ing] those disputes which are appropriately resolved through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likel[ihood]” that the injury “will be
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redressed by a favorable decision.” Lujan, 504 U.S. at 560–561 (internal quotation marks omitted). “‘The party invoking federal jurisdiction bears the burden of establishing’ standing.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411-412 (2013) (internal citation omitted).
In order to establish organizational standing, the Plaintiffs must establish the three traditional elements of standing. See Fair Elections Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014). But here, none of the Plaintiffs have sufficiently pleaded an injury-in-fact to support standing.
a. Plaintiffs have not alleged a sufficient injury-in-fact. An injury sufficient to satisfy Article III must be “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560 (some internal question marks omitted). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘“substantial risk’ that the harm will occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 409, 414, n. 5) (emphasis deleted and internal quotation marks omitted) (emphasis added). Overlaying this analysis is the question of “when the threatened enforcement of a law creates an Article III injury.” Susan B. Anthony, 573 U.S. at 158. On this point, the U.S. Supreme Court observed that an actual arrest or prosecution is not required, but enforcement must be imminent and the threat credible:
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When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” [Id. at 158-59 (internal citations omitted) (emphasis added).] Thus, to establish injury-in-fact in a pre-enforcement case, as here, Plaintiffs must demonstrate that they intend to engage in conduct that is constitutionally protected, that their intended conduct is arguably proscribed by the statutes they challenge, and last, that the threat of future enforcement of the challenged statutes is “sufficiently imminent” or “substantial,” which they can do by demonstrating that there is a “credible threat of prosecution” under the statutes, rather than an “imaginary or speculative” threat. Id. at 158-59, 161-65. Assuming, but not conceding, that Plaintiffs have alleged an intent to engage in protected conduct, and that at least some of their intended conduct is caught by the challenged statutes, Plaintiffs fail to sufficiently allege a credible threat of prosecution. Instead, Plaintiffs primarily allege that the Voter Transportation Ban and the Absentee Ballot Organizing Ban will harm them by having to expend and divert additional funds to voter education and mobilization efforts and having to train their employees and volunteers on how to comply with the laws.
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But these alleged future injuries are not “certainly impending” nor does there appear to be a “substantial risk” that any actual harm will occur. Susan B. Anthony List, 573 U.S. at 158. The complaint is devoid of any reference to recent prosecutions or threatened prosecutions under § 759(8) or § 931(1)(f). The only specific instance Plaintiffs point to is a press release from Uber stating that it was not offering discounted rides to the polls in Michigan for the November 2018 general election. (R. 22-1, Plfs’ P.I. Brf., PgID 160). But Plaintiffs do not allege or argue that Uber was threatened with prosecution in 2018.
Plaintiffs have not alleged facts sufficient to support a “credible threat of prosecution” under any of the statutes discussed above. See, e.g., Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (finding credible threat of enforcement where agency letter contained valid threat of enforcement). As a result, Plaintiffs have not sufficiently pled an injury-in-fact and thus lack standing to bring these claims.
Further, to the extent Plaintiffs allege they will have to “divert” or expend additional resources to combat the effects of these statutes, this argument also fails to show an injury-in-fact. The Sixth Circuit has previously rejected the “diversion of resources” theory in similar cases. In Fair Elections Ohio, 770 F.3d at 458, an organization conducting voter outreach sought to challenge a deadline for requesting an absent voter ballot on the theory that it prevented people jailed after
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the deadline and held through election day from exercising their right to vote. The Sixth Circuit held that the organization did not have standing because the organization had not shown an injury in fact. Id. at 459. The Court held that the organization had only an, “abstract social interest in maximizing voter turnout,” and that such abstract interests cannot confer Article III standing. Id. at 461 (citing Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 716-17 (6th Cir. 1995)). Moreover, Plaintiffs’ First and Fourteenth Amendment claims are primarily based on alleged injuries to individual voters and are untethered to their alleged injuries of having to divert resources.
On the other hand, the Sixth Circuit also addressed the “diversion of resources” theory in Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016), where it found that the organization plaintiff had standing, but only because it had immediate plans to revise its voter education program to adapt to a recent change in law, and that a favorable decision enjoining the new laws would redress that injury. But that case is distinguishable from the situation here, because there have been no recent changes in the law. Rather, these are long-existing laws. Just as in Fair Elections Ohio, Plaintiffs’ injuries are premised upon the rejected argument that they have standing “merely by virtue of [their] efforts and expense to advise others how to comport with the law, or by virtue of [their] efforts and expense to change the law.” 770 F.3d at 460.
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Further, Plaintiffs Priorities USA and Rise Inc. also do not allege that they are comprised of members that include any Michigan voters, and they also do not sufficiently allege how they, as institutions, have been injured by the challenged provisions. Lujan, 504 U.S. at 560-61. In short, Plaintiffs do not allege how the Bans have injured them in a manner that could be distinguishable from an alleged hypothetical harm incurred by any actual voter within the State of Michigan.
To the contrary, Plaintiffs raise only general grievances regarding what may occur to unidentified voters at some future time. Plaintiffs’ claims are similar to those considered and easily rejected by the Supreme Court, the Sixth Circuit, and this Court. See, e.g., Lance v. Coffman, 549 U.S. 437, 441 (2007) (“[S]tanding to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” (quotation omitted)); Miyazawa v. City of Cincinnati, 45 F.3d 126, 126-28 (6th Cir. 1995) (no standing for resident challenging city charter amendment when she had “suffered no harm, nor will she suffer any greater harm than that of any other voter in the City of Cincinnati”); Anthony v. Michigan, 35 F. Supp. 2d 989, 1003 (E.D. Mich. 1999) (no standing for Detroit citizens challenging consolidation of Detroit Recorder’s Court because plaintiffs did not “articulate how they [were] particularly harmed as a result of the merger”) (emphasis in original).
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Plaintiffs simply have no standing to raise any claims challenging the statutes at issue, and so they necessarily cannot demonstrate a likelihood of success on the merits of these claims.
b. Plaintiffs lack standing to sue in a representational capacity.
Each of the three Plaintiffs appear to be attempting to invoke the rights of unidentified third-party individuals who are not a party to this suit. But, even in a representational capacity, Plaintiffs must still meet the prudential requirements for standing developed by the Supreme Court. Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State (Valley Forge), 454 U.S. 464, 474 (1982)). First, a “plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties.” Valley Forge, 454 U.S. at 474 (internal quotation marks and citation omitted). Second, a plaintiff must present a claim that is “more than a generalized grievance.” City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007) (internal quotation marks omitted). Finally, the complaint must “fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Valley Forge, 454 U.S. at 475 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). “[E]ven when litigants have established a substantial injury from a government action, they ‘cannot challenge
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its constitutionality unless [they] can show that [they are] within the class whose constitutional rights are allegedly infringed.’” Smith, 641 F.3d at 207 (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953)).
Here, Plaintiffs are attempting to advance the legal rights of others, i.e. voters and other organizations who purportedly may be affected by the so-called Voter Transportation Ban and the Absentee Ballot Organizing Ban. In this respect, Plaintiffs have no particularized injury, and their constitutional rights are not affected by the challenged statutes.
It is true, however, that the Supreme Court has observed that its salutary rule against third-party standing is not absolute. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). The rule “should not be applied where its underlying justifications are absent.” Singleton v. Wulff, 428 U.S. 106, 114 (1976). In deciding when not to apply this rule, the Supreme Court has considered “two factual elements”:
The first is the relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right’s enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Singleton, 428 U.S. at 114-15. “Elsewhere, the [Supreme] Court has described this test as requiring that ‘the party asserting the right has a ‘close’ relationship with the person who possesses the right,’ and that there is a ‘hindrance’ to the possessor’s
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ability to protect his own interests.’” Smith, 641 F.3d at 208 (citing Kowalski, 543 U.S. at 130).
But in this case, Plaintiffs have neither alleged any “special relationship” to any person who might raise a claim that his or her rights have been violated by the Absentee Ballot Organizing Plan or the Voter Transportation Ban, nor identified any person by name. Moreover, there is no indication that such individuals are incapable of asserting their own rights. The underlying justifications against thirdparty standing thus apply, and Plaintiffs lack the requisite standing to bring claims based on injuries to third-parties.
Just as the Sixth Circuit observed in Fair Elections Ohio, 770 F.3d at 461, “[t]he plaintiffs are organizations and cannot vote; instead they assert the right to vote of individuals not even presently identifiable.” The Sixth Circuit rejected the exceptions to the rule against third party standing, finding that none applied. Id. There, just as here, the relationship between the plaintiff organization and the persons whom it seeks to help—unidentified, future voters—does not resemble the close relationship of the lawyer-client or doctor-patient relationships recognized by the Supreme Court. (Id.)
2. Plaintiffs are not likely to prevail on their claims because the Court lacks jurisdiction to issue a declaratory judgment.
In addition to Plaintiffs’ lack of standing, this Court lacks jurisdiction to entertain Plaintiffs’ claims for declaratory relief. Again, “Article III of the
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Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies.’ U.S. Const. art. III, § 2. The threshold question in every federal case is whether the court has the judicial power to entertain the suit.” National Rifle Assoc. of America v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). “In an attempt to give meaning to Article III's ‘case or controversy’ requirement, the courts have developed a series of principles termed ‘justiciability doctrines.’ ” Id. Those doctrines include both standing and ripeness. “Article III standing requires a litigant to have suffered an injury-in-fact, fairly traceable to the defendant's allegedly unlawful conduct, and likely to be redressed by the requested relief.” Id.
Plaintiffs bring this suit under the Declaratory Judgment Act, “which provides the mechanism for seeking pre-enforcement review of a statute.” Id. Declaratory judgments are typically sought before a completed “injury-in-fact” has occurred but must still be limited to the resolution of an “actual controversy.” Id. When requesting declaratory relief, a plaintiff “must show actual present harm or a significant probability of future harm in order to demonstrate the need for preenforcement review.” Id. “To determine whether a plaintiff has standing to adjudicate an ‘actual controversy,’ requisite for relief under the Declaratory Judgment Act, one must ask whether the parties have ‘adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment’ even though the injury-in-fact has not yet been completed.” Id. at 280. “A case is
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ripe for pre-enforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of ‘sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Id. at 284.
Here, as discussed above in the context of standing, Plaintiffs have not sufficiently alleged that a prosecution by the Attorney General, or any local prosecutor for that matter, is imminent or likely to come to pass under § 759(8) or § 931(1)(f). See United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir.1988) (articulating factors to consider regarding ripeness). Nor is the factual record in this case sufficiently developed to permit a fair and complete hearing as to Plaintiffs’ prospective claims as to these statutes. Id. Finally, no significant hardship will occur to Plaintiffs should this Court refuse to consider these prospective claims. Id. For these reasons, Plaintiffs claims are not ripe for review, and they cannot show a likelihood of success on the merits.
3. Plaintiffs have not shown a likelihood of success on the merits regarding the Absentee Ballot Organizing Ban.
Plaintiffs allege that the AV ballot application statutes violate the First and Fourteenth Amendments because (1) the statutes are unconstitutionally vague and overbroad, (R. 22-1, Plfs’ P.I. Brf., PgID 171-173), (2) because they impermissibly infringe on Plaintiffs’ speech and associational rights (Id., PgID 163-171), and (3), the statutes severely burden the right to vote, (Id., PgID 173-175). But Plaintiffs’ allegations are without merit since the statutes are not vague and the statutes, at
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best, only minimally burden the right to vote or to speak and associate and are supported by important regulatory interests.
The “right to vote in any manner . . . [is not] absolute,” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citation omitted); the Constitution recognizes the states’ clear prerogative to prescribe time, place, and manner restrictions for holding elections. U.S. Const. art. I, § 4, cl. 1. Indeed, there “must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Federal law thus generally defers to the states’ authority to regulate the right to vote. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203-04 (2008) (Stevens, J., op.) (recognizing that neutral, nondiscriminatory regulation will not be lightly struck down, despite partisan motivations in some lawmakers, so as to avoid frustrating the intent of the people’s elected representatives).
When a constitutional challenge to an election regulation requires courts to resolve a dispute concerning these competing interests, courts apply the AndersonBurdick analysis from Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick, supra, which requires the following considerations:
[T]he court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the
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burden imposed by its rule. Finally, it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Green Party of Tenn. v. Hargett (Hargett II), 791 F.3d 684, 693 (6th Cir. 2015)(internal quotation marks and citations omitted). “Though the touchstone of Anderson-Burdick is its flexibility in weighing competing interests, the ‘rigorousness of [the court’s] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.’ ” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Burdick, 504 U.S. at 434). If a state imposes “severe restrictions” on a plaintiff’s constitutional right to vote, its regulations survive only if “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434. But “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 of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016) (citing Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533, 546 (6th Cir. 2014), and quoting Burdick, 504 U.S. at 434). Regulations falling somewhere in between—“i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a ‘flexible’ analysis, ‘weighing the burden on the plaintiffs against the state’s asserted interest
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and chosen means of pursuing it.’ ” Ohio Democratic Party, 834 F.3d at 627 (quoting Hargett I, 767 F.3d at 546).
a. The statutes are not vague. The Sixth Circuit has held that a statute should not be struck as facially vague unless the plaintiff has “demonstrated that the law is impermissibly vague in all of its applications.” Green Party v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012)(quoting Vill. Of Hoffman Estates v. Flipside, Hoffman Estates Inc.,455 U.S. 489, 497 (1982)). The purpose of this doctrine is “to ensure that both those who enforce a statute and those who must comply with it know what is prohibited,” and not “to convert into a constitutional dilemma the practical difficulties of crafting a law that is general enough to take into account a variety of human conduct yet specific enough to provide fair warning.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) and Colten v. Kentucky, 407 U.S. 104, 110 (1972)(internal quotation marks omitted)). Federal courts must construe challenged state statutes, whenever possible, so as “to avoid constitutional difficulty.” Id. (quoting Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir. 2006)). Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. Id. (quoting Chapman v. United States, 500 U.S. 453, 464 (1991)).
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Courts apply a two-part test to determine whether a law is unconstitutionally vague: first, the law must give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited, so that [they] may act accordingly[;]” and second, the standards of enforcement must be precise enough to avoid “involving so many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.” Grayned, 408 U.S. at 108 (internal citation omitted); Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927), Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1105 (6th Cir. 1995)(quoting Cline v. Frink Dairy Co., 274 U.S. 445, 465 (1927)). In United States v. Lanier, the Supreme Court also observed that, “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered[.]” 520 U.S. 259, 266 (1997). Also, any words not expressly defined in the statute will be interpreted according to their ordinary, contemporary, and common meaning. Deutsche Bank National Trust Co. v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010).
Plaintiffs allege that the prohibition against “soliciting” or “requesting” to return an AV ballot application is so vague as to be incapable of giving ordinary people fair notice of what conduct is being proscribed. (R. 22-1, Plfs’ P.I.. Brf., PgID 171-173). Plaintiffs contend that it is somehow unclear if this includes a
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factual recitation of a voter’s right to request assistance with delivering an AV ballot application. Plaintiffs’ argument in this regard borders on being frivolous.
First, the conduct being prohibited is clear—that is, a person other than a person identified in § 759(4) is prohibited from requesting, offering, agreeing, or soliciting to return an AV ballot application for a voter. Mich. Comp. Laws §168.759(4), (5). The words “solicit” and “request” are not ambiguous or vague, nor are “offer” or “agree,” and all are readily understood using their ordinary, contemporary, and common meanings. These statutes prohibit a person from asking to return an AV ballot application. They do not prohibit a person from advising a voter of his or her options for returning an AV ballot application, including the option that the voter may select any registered elector to return the application. Moreover, to be guilty of a misdemeanor a person must both distribute the AV ballot application to the voter and return that voter’s application to the clerk. Mich. Comp. Laws, §§ 168.759(8), 168.931(1)(b)(iv).
Second, even if the statutes could be applied to more conduct or speech than what they plainly state, they would still be constitutional because the Court could readily provide a limiting construction of the statute to include only the conduct that is encompassed within a common understanding of the words of the statute. Plaintiffs fail to demonstrate a likelihood of success as to these claims.
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b. The statutes only minimally burden the right to speech and association.
Plaintiffs argue that the AV ballot application statutes burden their speech and associational rights. Plaintiffs argue that they engage in political expression when they interact with Michigan voters to encourage them to participate in the political process through voting. (R. 22-1, Plfs’ P.I. Brf., PgID 163-171). That may be true, but that is not what is at issue here. Plaintiffs seek to assist voters by delivering their AV ballot applications to their local clerk. That act is not speech.
The Supreme Court has held that conduct is not “speech” whenever the person engaging in the conduct intends thereby to express an idea. See United States v. O’Brien, 391 U.S. 367, 376 (1968). Courts have held, for example, that ballot collecting is not presumptively expressive, Feldman v. Arizona Sec of State’s Office, 840 F.3d 1057 (9th Cir. 2016), en banc decision on other grounds, 843 F.3d 366 (2016), because unlike burning an American flag or wearing a military medal, which “would reasonably be understood by the viewer to be communicative,” U.S. v Swisher, 811 F.3d 299, 311 (9th Cir. 2016) (internal citation omitted), ballot collection does not convey that type of expressive message. Indeed, ballot collecting does not acquire First Amendment protection just because it is carried out along with protected activities and speech. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (concluding that “combining speech and conduct” is not enough to create expressive conduct); Voting for Am v.
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Steen, 732 F.3d 382, 389 (5th Cir., 2013) (“The Court also has repeatedly explained that non-expressive conduct does not acquire First Amendment protection whenever it is combined with another activity that involves protected speech.”). Delivering AV ballot applications arguably falls into this category and is therefore not speech protected by the First Amendment.
But even if it was, as discussed above, any burden imposed by the AV ballot application statutes on Plaintiffs is minimal and outweighed by the State’s interest in preserving the integrity of the AV ballot application process. Moreover, Plaintiffs may assist voters by delivering their AV ballot applications, so long as the voters request Plaintiffs’ assistance rather than Plaintiffs soliciting to perform the act. Plaintiffs have failed to show a likelihood of success on the merits as to these claims.
c. The statutes only minimally burden the right to vote and are supported by important regulatory interests.
Plaintiffs ground the burden to voters in the fact that third parties cannot assist a voter by delivering a voter’s AV ballot application to the local clerk unless the third party is a registered voter and the voter affirmatively requests the third party’s assistance. This is a correct statement of the law. But let’s recount the numerous ways voters can return their written requests or form applications to their local clerk; (1) in person, (2) by U.S. mail or some other mail service, (3) by email, (4) by facsimile, (5) through in-person, mail, or other delivery by an immediate
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family member, which includes in-laws and grandchildren, (6) through in-person, mail, or other delivery by a person residing in the household with the voter, and (7) if none of those methods are available, through in-person, mail, or other delivery “by any registered elector.” Mich. Comp. Laws §§ 168.759(4)-(6).
There are six methods of delivery a voter may utilize before even getting to the “registered elector” option. And even then, the “registered elector” option does not burden voters. A voter can ask any registered elector in Michigan to deliver or return his or her application. If there is any burden it inures to the registered elector who may wish to assist a voter by delivering his or her application. This is because, as Plaintiffs note, the registered elector cannot solicit or request to deliver the application. Mich. Comp. Laws § 168.759(5). Rather, the voter must ask or request the registered elector to do so. But the law does not prohibit a registered elector from simply reading to, or giving a basic explanation of, the statutorily required instructions as to methods of delivery to a voter. If after doing so the voter requests that the registered elector return his or her form, and the registered elector completes the certificate, there is no violation of the law.
Thus, if Plaintiffs want to engage in GOTV activities in Michigan that include handing out blank AV ballot applications, Plaintiffs can staff the event with Michigan registered electors who can read the instructions regarding delivery
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to the voters, and staff can deliver forms for the voters if the voters thereafter ask staff to do so, and staff completes the certificate.
The burden on the right to vote itself here is non-existent, or at most, minimal. Indeed, Plaintiffs have not identified or alleged one single instance where any voter – elderly, a minority, economically disadvantaged or otherwise – was disenfranchised because he or she was unable to deliver his or her AV ballot application. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016) (determining it is error for a court to weigh “the burden that the challenged provisions uniquely place” on a subgroup of voters in the absence of “quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [those provisions]”). While the “registered elector” option for delivery is slightly more involved than the other third-party options, e.g., delivery by family or a person residing in the household, there is a rational reason for this difference. With family members or persons in the household, the State assumes a relationship of trust or accountability between the voter and these third parties where the voter can be assured that his or her application has been properly delivered and can readily inquire as to that fact. And the State will assume, based on these relationships, that the application delivered to the local clerk was properly
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completed and delivered. In other words, that the identified voter does, in fact, wish to receive and vote an AV ballot.
Outside these relationships, the elements of trust and accountability are or may be reduced. For instance, if a voter attends a GOTV event sponsored by Plaintiffs, the “registered elector” with whom a voter interacts may be a complete stranger. In that instance, the State requires more caution. It should be the voter who decides to entrust a stranger with delivering his or her application. And the State is less trusting as well, requiring that stranger to complete the certificate on the application form identifying himself or herself. That way if there are questions about the application, the local clerk can contact the voter or the registered elector.
Balanced against these minimally burdensome steps is the State’s important regulatory interest in protecting the integrity and security of the AV ballot process. Michigan’s Constitution expressly provides that the Legislature “shall enact laws . . . to preserve the purity of elections,” and to “guard against abuses of the elective franchise[.]” Mich. Const. 1963, art. 2, § 4(2). The Supreme Court has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson 460 U.S. at 788, n. 9 (1983). In other words, it has recognized that a State has a compelling interest in ensuring that an individual’s right to vote is not undermined by fraud in the election process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (“Confidence in
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the integrity of our electoral processes is essential to the functioning of our participatory democracy.”). And the Court has held that legislatures are permitted to respond to potential deficiencies in the electoral process with “foresight” rather than “reactively.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986).
Here, the requirements with respect to delivery by a “registered elector” protect both the voter and the process by helping to ensure that the voter’s application is properly delivered, and that the voter identified on an application for an AV ballot does in fact wish to obtain and vote by AV ballot. The very minimal burden created by the requirements, even for elderly or economically disadvantaged voters, is outweighed by the State’s important interest in protecting the integrity of the AV ballot process. Plaintiffs have thus failed to demonstrate a likelihood of success on the merits as to these claims.
d. The statutes are not preempted. Plaintiffs next allege that the AV ballot application statutes conflict with § 208 of the Voting Rights Act (VRA), 52 U.S.C. § 10508, and are thus preempted. (R. 22-1, Plfs’ P.I. Brf., PgID 175-178). But there is no conflict between these statutes and § 208 of the VRA and therefore, no preemption. Section 208 provides: Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.
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52 U.S.C. § 10508 (emphasis added). The VRA defines the terms “vote” and “voting” to include:
[A]ll action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. 52 U.S.C. § 10310. Plaintiffs argue that Mich. Comp. Laws, §§ 168.759(3) and (8) conflict with § 208 to the extent that the statutes prohibit a blind, disabled, or illiterate voter from requesting third parties, like Plaintiffs’ volunteers, from asking such voters if the volunteers may return their AV ballot applications. (R. 22-1, Plfs’ P.I. Brf., PgID 175-178). Conflict preemption occurs where compliance with both a federal and state regulation is physically impossible, or “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992). Here, the statutes do neither. They do not prohibit a blind, disabled, or illiterate voter from being given assistance by a person of the voter’s choice. Section 208 clearly contemplates that it is the voter who is seeking the assistance. Section 759 likewise contemplates that it is the voter who will request someone else to return their AV ballot application. The prohibition against a person actively soliciting to
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return a voter’s application without a request by the voter to do so does not conflict
with the voter’s rights under § 208 to affirmatively seek assistance. Plaintiffs thus
cannot demonstrate a likelihood of success on the merits of this claim.
4. Plaintiffs’ complaint fails to state a claim upon which relief may be granted regarding the Voter Transportation Ban.
Plaintiffs argue that § 931(1)(f) is unconstitutional under the First and
Fourteenth Amendments, or is otherwise preempted by 11 C.F.R. § 114.4. (R. 22-
1, Plfs’ P.I. Brf., PgID 178-191). In order to analyze these claims, it is helpful to
first consider the statute’s historical context.
This statute was originally enacted by 1895 P.A. 135, which provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any primary conducted hereunder, or who shall solicit any person to cast an unlawful vote at any primary, or who shall offer to any voter any money or reward of any kind, or shall treat any voter or furnish any entertainment for the purpose of securing such voter’s vote, support, or attendance at such primary or convention, or shall cause the same to be done, shall be deemed guilty of a misdemeanor. [Emphasis added.] By 1929, the additional “for the purpose of” language in the provision had been
divided along with the other described illegal acts and placed elsewhere in the law,
and the statute then simply provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any election or primary election conducted hereunder shall be deemed guilty of a misdemeanor. [C.L. 1929, § 3298.]
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And finally, it was amended2 to its current version: 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. [Mich. Comp. Laws § 168.931(1)(f) (emphasis added)]. Under Michigan statutory construction principles, the purpose of interpreting
a statute is “to discern and give effect to the intent of the legislative body.” Great Lakes Society v. Georgetown Charter Twp., 761 N.W.2d 371, 380 (2008). Michigan courts presume that the legislative body intended the meaning it plainly expressed in the statute. Joseph v. Auto Club Ins. Ass’n, 815 N.W.2d 412, 415 (2012). Terms are given their plain and ordinary meanings. Great Lakes, 761 N.W.2d at 380. “When a term or phrase is not defined in a statute, the court may consult a dictionary to ascertain its commonly accepted meaning.” Motycka v. Gen. Motors Corp., 669 N.W.2d 292, 294 (2003). Unless it is plain that something different was intended, words and phrases should be read in their grammatical context, and in the context of the entire legislative scheme. See Bush v. Shabahang, 772 N.W.2d 272, 279 (2009). “The statute must be interpreted in a manner that ensures that it works in harmony with the entire statutory scheme.” See id.
2 See1982 P.A. 201 and 1995 P.A. 261.
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The Michigan Election Law does not define “person.” But Mich. Comp. Laws § 8.3l 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.” But 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 of Am, Inc., 2008 WL 2357643, at *3 (Mich. Ct. App., June 10, 2008) (quoting Random House Webster’s College Dictionary (1997)). However, the Act does define “[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 nominate by ballot an individual for public office or decide a ballot question lawfully submitted to them.” Mich. Comp. Laws § 168.2(g).
Under the current version of § 931(1)(f), an individual or a corporate body cannot “hire” or engage the temporary service of a vehicle for a fee to transport voters to an election or primary election unless the voters are physically unable to walk to the election. At first blush, this language might appear to capture the innocuous situation of a parent arranging and paying for an Uber to take a daughter
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at college to the polls, or a church hiring a van and driver to take parishioners to the polls. But that is not what the Michigan Legislature intended.
Michigan courts consider changes in an act or statute in light of predecessor statutes and historical developments. See Mason Co. v. Dep’t of Community Health, 820 N.W.2d 192, 198 (2011); MD Marinich, Inc. v. Michigan Nat. Bank, 484 N.W.2d 738, 740 (1992). As noted above, the current language of § 931(1)(f), which remains similar to the 1895 language, was separated from its surrounding provisions in the early 1900’s. But it is the surrounding provisions that give context and meaning to what is now § 931(1)(f). As is evident from the original language, the purpose of the transport prohibition is to protect voters against undue influence. Or more specifically, it is to prevent “quid pro quo” arrangements that may occur when something of value—here, transportation service—is provided to a voter in exchange for the voter’s vote in favor of candidates or proposals supported by the person who hired the transportation.
Under this interpretation, an individual or corporate body that hires transportation to convey voters to an election would not run afoul of § 931(1)(f)’s prohibition unless the service was provided to voters with the demand or expectation that voters will support candidates or proposals supported by the individual or corporate body that hired the transportation. Thus, parents who hire Uber drivers for their children at college, or churches hiring drivers to take people
38

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to the polls, would not be subject to punishment if the transportation was provided with no strings attached, i.e., no requirement or expectation that the transported voters will support particular candidates or proposals. And otherwise the statute does not prohibit an individual or corporate body from paying for expenses incurred in transporting a voter by vehicle.3 And it does not prohibit an individual or corporate body from providing voters with free transportation to an election.
a. The statute is not vague. As argued above, courts avoid striking statutes as facially vague so long as they are capable of being interpreted in a manner that is constitutional. Hargett, 700 F.3d at 825. Just as with their arguments concerning the return of AV ballot applications, Plaintiffs’ arguments regarding § 931(1)(f) are similarly flawed. Plaintiffs contend that the statute is vague because it is not clear what it means to “hire a motor vehicle.” (R. 22-1, Plfs’ P.I. Brf., PgID 183-184).
3 Any expenditures, however, may have to be reported to the Michigan Department of State. Michigan’s Campaign Finance Act, Mich. Comp. Laws § 169.201 et seq., includes within the definition of a reportable “expenditure” an “expenditure made for . . . transporting voters to the polls,” Mich. Comp. Laws § 169.206(1)(c), unless it is “[a]n expenditure for . . . nonpartisan get-out-the-vote activities made by an organization that is exempt from federal income tax under section 501(c)(3) of the internal revenue code, 26 USC 501,” Mich. Comp. Laws § 169.206(2)(f). Plaintiffs Priorities USA and Rise Inc. are not entitled to the reporting exemption because they are 501(c)(4) corporations. But DAPRI is a 501(c)(3) corporation and would be entitled to the exemption.
39

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Again, the words of the statute are understandable by a person of ordinary intelligence according to the common meaning of the words. As noted above, “hire” is defined in the dictionary as meaning “to engage the services of for wages or other payment,” or alternatively, “to engage the temporary use of at a set price.” Tech & Crystal, Inc., 2008 WL 2357643, at *3 (quoting Random House Webster’s College Dictionary (1997)). In either sense, the critical factor is the provision of services or use for a fee. Also, the statute prohibits hiring vehicles or conveyances “for voters,” which necessarily contemplates acting on behalf of others, not oneself. Lastly, as discussed in the argument above, the original purpose and objective of the statute was to address hiring such services “for the purpose” of influencing voters. Plaintiffs’ alleged concerns—i.e. volunteers, gas money, or a voter paying for a taxi for themselves—are unfounded and not rooted in a reasonable reading of the statute. Notably, there is no allegation that such an enforcement has been threatened, and the Attorney General can find no record of such a prosecution ever having occurred. And, as discussed above, even if such an application could be construed from the language of the statute, the statute would still be constitutional so long as the Court could limit the construction of the statute to only the conduct that is clearly included. Plaintiffs fail to demonstrate a likelihood of success on merits as to this claim.
40

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b. The statute only minimally burdens the right to speech and association.
Plaintiffs argue that § 931(1)(f) impermissibly infringes on its speech and associational rights. (R. 22-1, Plfs’ P.I. Brf., PgID 178-180). But driving a voter to an election or arranging for the voter to be driven to an election, like the delivery of AV ballot applications, is not speech. See, e.g., O’Brien, 391 U.S. at 376; Feldman, 840 F.3d 1057; Rumsfeld, 547 U.S. at 66; Voting for Am, 732 F.3d at 389. But even if it was, as explained above, any burden imposed by § 931(1)(f) on Plaintiffs is minimal and outweighed by the State’s important interest in protecting voters from undue influence, which helps preserve the integrity of Michigan’s elections.
Plaintiffs also argue that § 931(1)(f) unconstitutionally restricts political spending, and thus political speech. (R. 22-1, Plfs’ P.I. Brf., PgID 180-183). But again, driving voters to elections is not speech. And even if it was, the statute does not unconstitutionally restrict any protected speech. As explained above, under § 931(1)(f) Plaintiffs can spend any amount of money to transport voters to elections so long as the transportation is not a “quid pro quo” for the voters’ support of particular candidates or ballot proposals supported by Plaintiffs. And prohibiting Plaintiffs from spending money to arrange quid pro quos is an important, if not compelling, State interest in protecting against corruption in elections. See, e.g., Buckley v. Valeo, 424 U.S. 1, 45 (1976) and McConnell v. Federal Election
41

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Comm'n, 540 U.S. 93, 204-206 (2003) (recognizing corruption as an important governmental interest supporting restrictions on spending for political speech). See also, Burson v Freeman, 504 U.S. 191, 199 (1992) (citing Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228, 229 (1989) (explaining that a State has a compelling interest in protecting voters from undue influence); Sheldon v. Grimes¸18 F. Supp. 3d 854 (ED Ky., 2014) (state’s interest in protecting absentee voters from undue influence weighed against granting injunction).
Plaintiffs thus fail to demonstrate a likelihood of success on the merits as to these claims.
c. The statute only minimally burdens the right to vote and is supported by important regulatory interests.
Plaintiffs argue that § 931(1)(f) severely burdens the right to vote because by prohibiting paid drivers the statute reduces the number of drivers able to transport voters, particularly elderly and minority voters, to the polls for an election. (R. 221, Plfs’ P.I. Brf., PgID 184-186).
But § 931(1)(f) does not severely burden the right to vote. Surely if this was true Plaintiffs could identify at least one instance in which a voter was disenfranchised because he or she was unable to obtain transportation to the polls. See e.g., Northeast Ohio Coal for the Homeless, 837 F.3d at 631 (6th Cir. 2016). Notably, as a result of the passage of Proposal 3 in 2018, all qualified electors have “[t]he right, once registered, to vote an absent voter ballot without giving a
42

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reason[.]” Mich. Const. 1963, art. 4, § 1(g). Once registered, all voters can vote an AV ballot at all future elections. And the process for obtaining an AV ballot is simple, as discussed above. Voters who do not have or cannot obtain transportation to an election can avail themselves of the AV ballot process.
And if a voter cannot vote an AV ballot for some reason, he or she can still receive transportation from family, friends, or volunteers of organizations such as churches, labor organizations, and party organizations, or numerous other organizations or entities, including Plaintiffs, if the transportation is provided for free or, if paid for, without any intent to secure or influence the voter’s vote. Indeed, this case is principally about transporting physically able voters to the polls since any voter physically unable to walk to an election is not within the prohibition. Under the language of § 931(1)(f), Plaintiffs may provide these voters with rides to an election or it may assist voters in obtaining free rides to an election. Moreover, Plaintiffs can incentivize volunteer drivers by offering to cover their expenses, such as the cost of gas. Ultimately, any secondary burden on voters, who are not the target of § 931(1)(f), is minimal.
Balanced against these minimal burdens is, again, the State’s interest in preserving the integrity of its elections. See Mich. Const. 1963, art. 2, §4(2); Anderson, 460 U.S. at 788, n. 9. As is plain from the original language of § 931(1)(f), and is true today, the purpose of the prohibition is to protect voters
43

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against undue influence. This is an important, if not compelling, State interest and Plaintiffs have not sufficiently alleged that the State’s interest does not outweigh the minimal burden on voting rights. See Burson, 504 U.S. at 199 (citing Eu, 489 U.S. at 228, 229 (explaining that a State has a compelling interest in protecting voters from undue influence); Sheldon¸18 F. Supp. 3d 854, 861-862 (state’s interest in protecting absentee voters from undue influence weighed against granting injunction). Plaintiffs fail to demonstrate a likelihood of success on the merits as to these claims.
d. The statute is not preempted. Plaintiffs allege that §931(1)(f) is preempted by 11 C.F.R. § 114.4 and that the Attorney General should be enjoined from enforcing it with respect to federal elections. (R. 22-1, Plfs’ P.I. Brf, PgID 186-191.) Plaintiffs allege the statute is expressly preempted or preempted because it conflicts with federal law. (Id.) Federal law may preempt state law either expressly or impliedly. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152–53 (1982). Express preemption exists where a federal statute or regulation contains explicit language indicating that a specific type of state law is preempted. Id. at 153. See also State Farm Bank v. Reardon, 539 F.3d 336, 341–42 (6th Cir. 2008). And as noted above, conflicts preemption exists “where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to
44

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the accomplishment and execution of the full purposes and objectives of Congress.” Gade, 505 U.S. at 98.
But here the federal regulation does not expressly or impliedly prohibit § 931(1)(f), and there is no conflict between 11 C.F.R. § 114.4 and § 931(1)(f), and therefore, no preemption.
11 C.F.R. § 114.4(d)(1) provides: Voter registration and get-out-the-vote drives permitted. A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at employees outside its restricted class and the general public. Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration. [Emphasis added.] The federal statute does not define the word provid[ing], but the American Heritage Dictionary defines it as 1. To furnish; supply. 2. To make ready; prepare. 3. To make available; afford. American Heritage Dictionary (2nd Ed, 1982). Even as to state elections where there is a federal candidate on the ballot, § 931(1)(f) does not conflict with § 114.4. The federal provision allows Plaintiffs to provide transportation to the polls. Consonant with that, the state provision allows Plaintiffs to themselves provide transportation to the polls. They can utilize their employees or rally volunteers. They simply cannot “hire” or pay a person or entity to transport voters to the polls in exchange for the voters’ support of particular candidates or proposals. Plaintiffs argue that in most instances, organizations will hire individuals to drive. (R. 22-1, Plfs’ P.I. Brf, PgID 178-179.) But the federal
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statute does not guarantee Plaintiffs the right to “hire” or pay a person or entity to transport voters, only the opportunity to “provide” transportation. And because the challenged state statute allows Plaintiffs to “provide” transportation to the polls, there is no conflict preemption. Plaintiffs fail to demonstrate a likelihood of success on the merits as to this claim.
C. Plaintiffs have not demonstrated irreparable injury. Plaintiffs have not demonstrated any irreparable injury. First, there is no unconstitutional restriction on their associational or speech rights, for all the reasons argued above. Second, to the extent Plaintiffs raise a claim based on their “diversion of resources,” that is not an “irreparable” injury. The Supreme Court has held: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Sampson v. Murray, 415 U.S. 61, 90 (1974). But here, the entirety of Plaintiffs’ claims rest upon allegations of injuries in terms of money, time, and energy. As argued above, Plaintiffs have brought this case as a pre-enforcement action, and Plaintiffs have no imminent risk of harm and a preliminary injunction is premature and unnecessary. Plaintiffs have simply not demonstrated an irreparable injury.
46

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But even if one or more of the Plaintiffs could demonstrate irreparable harm, as set forth above Plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claims. As the Sixth Circuit has held, “a finding that there is simply no likelihood of success on the merits is usually fatal” to a request for injunctive relief. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
D. An injunction will cause irreparable harm to the State. While there will be no irreparable harm to the Plaintiffs without an injunction, the issuance of an injunction will irreparably harm the State and its citizens. The Supreme Court has recognized that “anytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, *3 (2012) (C.J. Roberts in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). The election laws challenged here were duly enacted by the Michigan Legislature. E. An injunction is not in the public interest. The injunctive relief sought here is not in the public interest. The people of Michigan have a strong interest in having the State’s election laws effectuated. See Maryland, 567 U.S. at *3.
47

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In sum, Plaintiffs have not met the factors that justify the extraordinary

relief they seek, which is the invalidation of long-standing regulations on

solicitation of AV ballot applications and improper attempts to influence voters

through rides to elections.

CONCLUSION AND RELIEF REQUESTED For the reasons stated above, Plaintiffs have failed to demonstrate that they

are likely to succeed on the merits of their claims, that they have or are likely to

suffer any irreparable injury, that the State will not be harmed by an injunction, or

that an injunction is in the public’s interest.

Defendant Attorney General Dana Nessel therefore respectfully requests that

this Honorable Court enter an Order denying Plaintiffs’ motion for preliminary

injunction, together with any other relief that the Court determines to be

appropriate under the circumstances.

Respectfully submitted,

Dated: February 18, 2020

s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

48

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CERTIFICATE OF SERVICE I hereby certify that on February 18, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439
49

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 33 filed 02/19/20 PageID.498 Page 1 of 27

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA,Rise,Inc., and the Detroit/Downriver Chapter ofthe A. Philip Randolph Institute,
Plaintiffs,
v.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN

Dana Nessel, in her official capacity as Attorney General ofthe State of Michigan,
Defendant.

MOTION TO INTERVENE BY THE MICHIGAN
REPUBLICAN PARTY AND THE REPUBLICAN
NATIONAL COMMITTEE

MOTION TO INTERVENE BY THE MICHIGAN REPUBLICAN PARTY AND THE REPUBLICAN NATIONAL COMMITTEE
Pursuant to Federal Rule Civil Procedure 24, and for the reasons described in the accompanying Briefin Support ofMotion to Intervene,the Michigan Republican Party("MRP")and the Republican National Committee("RNC")(collectively the "Applicants") move for leave.to intervene as party defendants, and state that:
The Applicants have filed this Motion in a timely manner as required by Rule 24(a)and(b). The Applicants are entitled to intervene as a matter ofright under Rule 24(a) because:
a. The Applicants have substantial and unique interests in the subject matter ofthis litigation;

Case 4:19-cv-13341-SDD-RSW ECF No. 33 filed 02/19/20 PageID.499 Page 2 of 27
b. The Applicants are so situated that the disposition ofthis action by this Court may as a practical matter impair or impede their ability to protect their substantial and unique interests;
c. The Applicants have substantial interests in the subject matter of this litigation because their voters, members, and the candidates that they have supported will be affected by the outcome ofthis litigation;
d. Specifically, the Applicants have competitive interests in defending the constitutional election laws in Michigan in order to preserve a fair playing field and prevent change to Michigan's competitive environment in the upcoming 2020 elections; and
e. Applicants interests are not adequately represented by the existing parties to this suit.
In the alternative, the Applicants should be permitted to intervene in this action under Rule 24(b) because:
f. Their claims and defenses to this action have questions oflaw and fact that are common to the original action; and
g. Allowing the Applicants to intervene will not unduly delay the pending action or prejudice the rights of the parties in this action.
The Applicants have attached a pleading setting forth their claims or defenses for which intervention is sought pursuant to Rule 24(c).
The Applicants further seek the Court's permission to respond to Defendant Dana Nessel's Motion to Dismiss the Amended Complaint.(R.27).
As required by Local Rule 7.1(a), undersigned has conferred with counsel for
the existing parties concerning the nature of this Motion and its legal basis, and counsel for both parties denied concurrence.
2

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WHEREFORE,the Applicants respectfully request that this Court grant their

motion for leave to intervene in the above-titled matter.

BUTZEL LONG,PC

DATED: February 19,2020

By: /s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) Steven R. Eatherly(P81180) 150 W.Jefferson, Suite 150 Detroit, Michigan 48226 (313)225-7000 wilder@butzel.com eatherly@butzel.com

3

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA,Rise, Inc., and the Detroit/Downriver Chapter ofthe A. Philip Randolph Institute,
Plaintiffs,
v.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN

Dana Nessel, in her official capacity as Attorney General ofthe State of Michigan,
Defendant.

BRIEF IN SUPPORT OF MOTION TO INTERVENE BY
THE MICHIGAN REPUBLICAN PARTY AND
THE REPUBLICAN NATIONAL COMMITTEE

BRIEF IN SUPPORT OF MOTION TO INTERVENE BY THE MICHIGAN REPUBLICAN PARTY AND THE REPUBLICAN NATIONAL COMMITTEE
Pursuant to Federal Rule Civil Procedure 24, the Michigan Republican Party
("MRP") and the Republican National Committee ("RNC") (collectively the
"Applicants"), move for leave to intervene as party defendants in this case.
BUTZEL LONG,PC
By:/s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) Steven R. Eatherly(P81180) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313)225-7000 wiider@butzei.com eatherly@butzel.corn

Case 4:19-cv-13341-SDD-RSW ECF No. 33 filed 02/19/20 PageID.502 Page 5 of 27
CONCISE STATEMENT OF THE ISSUE PRESENTED I. Whether this Court should grant the Applicants Motion to Intervene as a
matter of right pursuant to Rule 24(a)(2), or in the alternative, by permissive intervention under Rule 24(b).

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CONTROLLING OR MOST APPROPRIATE AUTHORITY

Cases League of Women Voters of Mich. v. Johnson,902 F.3d 572(6th Cir. 2018) Southerland v. Fritz,955 F. Supp. 760(E.D. Mich. 1996)\ Heitmanis v. Austin,677 F. Supp. 1347(E.D. Mich. 1988) Purnell v. City of Akron,925 F.2d 941 (6th Cir. 1991) Shays v. FEC,414 F.3d 76(D.C. Cir. 2005) Nader v. FEC,725 F.3d 226(D.C. Cir. 2013) Utah Ass'n of Counties v. Clinton, 255 F.3d 1246(10th Cir. 2001) Libertarian Party of Mich. v. Johnson,No. 12-CV-12782,2012 U.S. Dist. LEXIS 126096
(E.D. Mich. Sept. 5, 2012)

Statutes

52 U.S.C. § 30101

2

Rules

Fed. R. Civ. P. 24(a)-(b)

5

Fed. R. Civ. P. 24(b)(3)

17

11

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TABLE OF CONTENTS

CONCISE STATEMENT OF THE ISSUE PRESENTED

CONTROLLING OR MOST APPROPRIATE AUTHORITY

ii

INDEX OF AUTHORITIES

iv

INTRODUCTION

1

BACKGROUND

1

I. The Applicants

2

II. Procedural History

2

ARGUMENT

4

I. The Applicants are entitled to intervene as a matter of right.

4

A. The Applicants Motion has been timely filed.

5

B. The Applicants' substantial legal interests will be impaired

without intervention.

8

C. Defendant will not adequately protect the Applicants'

interests.

1 1

II. In the alternative, the Court should grant permissive intervention.

16

CONCLUSION

18

111

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INDEX OF AUTHORITIES

Cases

455 Cos., LLC v. Landmark Am. Ins. Co., No. 16-CV-10034, 2016 U.S. Dist. LEXIS 132047, at

*5-6(E.D. Mich. Sept. 27,2016)

8

Am. Bev. Ass'n v. Snyder,No. 1:11-CV-195,2011 U.S. Dist. LEXIS 160024, at *7(W.D. Mich.

Apr. 26,2011)

7

Assoc. Gen. Contr. OfOhio, Inc. v. Drabik,214 F.3d 730,734(6th Cir. 2000)

20

Blount-Hill v. Zelman,636 F.3d 278,283(6th Cir. 2011)

5, 6

Buck v. Gordon,No. 1:19-cv-286(W.D. Mich)

17

Clark v. Putnam Cnty., 168 F.3d 458,461 (11th Cir. 1999)

15, 16

Coal to Defend Affirmative Action v. Granholm,240 F.R.D. 368,375(E.D. Mich. 2006)

10

Coal. ofAriz./New Mex. Countiesfor Stable Economic Growth v. DOI, 100 F.3d 837,845(10th

Cir. 1996)

15

Dumont v. Lyon,No.2:17-cv-13080(E.D. Mich,2019)

17

Grutter v. Bollinger, 188 F.3d 394,398(6th Cir. 1999)

10, 13

Heitmanis v. Austin,677 F. Supp. 1347, 1349(E.D. Mich. 1988)

11

In re Sierra Club,945 F.2d 776,779-80(4th Cir. 1991)

16

Jansen v. Cincinnati,904 F.2d 336,340(6th Cir. 1990)

5

Libertarian Party ofMich. v. Johnson,No. 12-CV-12782,2012 U.S. Dist. LEXIS 126096(E.D.

Mich. Sept. 5, 2012)

10

Macomb Interceptor Drain Drainage Dist. v. Kilpatrick,2012 U.S. Dist. LEXIS 63725,at *11

(E.D. Mich. May 7,2012)

8

Meek v. Metro. Dade Cnty., 985 F.2d 1471, 1478(11th Cir. 1993)

15

Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)

8, 10

N.E. Ohio Coal.for the Homeless v. Blackwell,467 F.3d 999, 1007(6th Cir. 2006)

10

NAACP v. New York,413 U.S. 345,366-69(1973)

6

Nader v. FEC,725 F.3d 226,228-29(D.C. Cir. 2013)

12

Parkwest Dev., LLC v. Ellahi,No. 18-CV-0385,2018 U.S. Dist. LEXIS 128988,at *3(E.D.

Mich. Aug. 1, 2018)

8

Priorities USA v. Nessel, No. 4:20-cv-10211

2, 3

Purnell v. City ofAkron,925 F.2d 941,950(6th Cir. 1991)

1, 5

Shays v. FEC,414 F.3d 76,85(D.C. Cir. 2005)

12

Sierra Club v. Glickman,82 F.3d 106, 110(5th Cir. 1996)

16

Southerland v. Fritz,955 F. Supp. 760,760(E.D. Mich. 1996)

11

Stotts v. Memphis Fire De7;679 F.2.(1. 579,582(6th Cir. 1982)

19

Stupak-Thrall v. Glickman,226 F.3d 467,472(6th Cir. 2000)

6

The Shane Grp., Inc. v. Blue Cross Blue Shield ofMich., No. 10-cv-14360, 2016 WL 4475011 at

*5(E.D. Mich. Aug. 25,2016)

7

Trbovich v. United Mine Workers ofAmerica,404 US 528,538 n.10(1972)

13

United States v. Mich.,424 F.3d 438,443(6th Cir. 2005)

13

Utah Ass'n ofCounties v. Clinton,255 F.3d 1246, 1255-56(10th Cir. 2001)

14

iv

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INTRODUCTION Federal courts broadly construe the rules governing intervention "in favor of potential intervenors." Purnell v. City ofAkron,925 F.2d 941,950(6th Cir. 1991). The issue in this case is whether two long-standing Michigan election laws are unconstitutional, specifically Mich. Comp.Laws("MCL")168.931(1)(0(the "Paid Driver Ban") and MCL 168.759(4), (5), (8) (the "Absent Ballot Application Harvesting Ban").' MRP and RNC respectfully move this Court for leave to intervene as of right under Rule 24(a)(2), or in the alternative, permissively under Rule 24(b)(1). Because a decision from this Court could potentially harm MRP and RNC's substantial interest in preventing change to Michigan's competitive electoral environment and their participation in this case will not prejudice the parties, this Court should grant the motion to intervene.
BACKGROUND
In contrast with Plaintiffs' preferred nomenclature, Applicants argue that the terminology proposed here and used throughout this Brief is consistent with the challenged statutes' text and effect, and reflects the State's interests in preserving both the integrity of the conduct of elections and the absent voter ballot application process. The interests served by these Election Laws is particularly poignant in light of recent allegations of abuse of the absent ballot process in Michigan. See, e.g., Christine Ferretti, Southfield city clerk charged with 6 felonies tied to November election,(Sept. 23, 2019), https://www.detroitnews.com/story/news/local/oaklandcounty/2019/09/23/southfie ld-city-clerk-charged-six-felonies-november-2018election.

Case 4:19-cv-13341-SDD-RSW ECF No. 33 filed 02/19/20 PageID.507 Page 10 of 27
I. The Applicants The Applicants are political committees that assist their Republican members
achieve electoral victories in Michigan. MRP is a "major political party" as that tei I 1 is defined in the Michigan Election Law. See MCL 168.16. MRP is formed for the general purposes ofpromoting Republican values and assisting candidates who share those values with election or appointment to partisan federal, state, and local office. MRP moves to intervene in this action on behalf of itself and its members.
The RNC is a national committee as defined by 52 U.S.C. § 30101. The RNC manages the Republican Party's business at the national level, supports Republican candidates for public office at the local, state, and federal levels(including those on the ballot in Michigan) and state parties (including MRP), coordinates fundraising and election strategy, and develops and promotes the national Republican platform. The RNC and MRP will spend several million dollars to help elect candidates up and down the ballot in Michigan in the 2020 General Election. II. Procedural History
The present action remains in its infancy. On November 12, 2019, original Plaintiff Priorities USA ("Priorities" or "Original Plaintiff') filed its Complaint against Defendant Dana Nessel, in her official capacity as Michigan Attorney General, alleging that the Paid Driver Ban and the Absent Ballot Application Harvesting Ban are'unconstitutional.(R. 1).
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In lieu of filing an answer, Defendant moved to dismiss for lack of standing and failure to state a claim upon which relief could be granted on December 20, 2019.(R. 10). Declining to rule on the merits, this Court invited Plaintiff to file an amended complaint within 21 days ofDefendant's motion to dismiss or to otherwise respond in accordance with court rules.(R. 13).
On January 27, 2020, in an attempt to cure its lack of standing, the Original Plaintifffiled an Amended Complaint adding new Plaintiffs Rise, Inc.("Rise")and the Detroit/Downriver Chapter of the A. Philip Randolph Institute Detroit/Downriver Chapter("DAPRI")(collectively,"Plaintiffs"), and adding four new legal claims.(R. 17). On the same day,Plaintiffs filed a separate action against Defendant which was identical in substance to the Amended Complaint. See Priorities USA v. Nessel, No. 4:20-cv-10211 ("Priorities II"). Plaintiffs then immediately moved to consolidate the present case and Priorities II. (R. 20). The Court administratively closed PrioritiesIIon February 14,2020.No.4:20-ev-10211, (E.D. Mich),ECF No. 13.
On January 28, 2020, Plaintiffs moved for a preliminary and permanent injunction.(R. 22). On the same day, Plaintiffs moved for an order(1)expediting consideration of their motion seeking an injunction, (2) compelling expedited compliance with Plaintiff's discovery requests, and(3)consolidating the hearing on Plaintiffs' motion for an injunction with the trial on the merits.(R. 23). Defendant
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responded to Plaintiffs' motion to expedite, arguing that Plaintiffs' request for an order directing Defendant to comply with expedited discovery should be denied because the "discovery requests" are misdirected and overbroad, and an expedited schedule consolidating the hearing on preliminary injunction with a trial on the merits is unnecessary.(R.24,PageID #4;8).
On February 10, 2020, Defendant filed a renewed motion to dismiss the Amended Complaint.(R.27). The next day,this Court ordered Plaintiffs to respond to Defendant's motion to dismiss by February 24, 2020, and Defendant to file her reply brief by February 28, 2020. (R. 29). This Court further denied without prejudice Plaintiffs' motion to expedite.(Id.).
Now,the Applicants, through this Motion, timely move to intervene as party defendants in this action.
ARGUMENT I. The Applicants are entitled to intervene as a matter of right.
Federal Rule Civil Procedure 24(a)(2) provides that the "court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposition of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Generally, "a person cannot be deprived of his or her legal rights in a proceeding to which such a person
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is neither a party nor summoned to appear in the legal proceeding." Jansen v. Cincinnati,904 F.2d 336,340(6th Cir. 1990). Therefore,"the need to settle claims among a disparate group of affected persons militates in favor of intervention." Id.
The Sixth Circuit has held that Rule 24(a)'s requirements are satisfied if:(1) the application was timely filed; (2) the applicant possesses a substantial legal interest in the case;(3)the applicant's ability to protect its interest will be impaired without intervention; and (4)the existing parties will not adequately represent the applicant's interest. See Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011). Each ofthese elements must be satisfied, but Rule 24 should be "broadly construed in favor of potential intervenors." Purnell, 925 F.2d at 950. The Applicants satisfy all four elements necessary for intervention as of right under Rule 24(a).
A. The Applicants' Motion has been timely filed. Rule 24 requires that a party timely move for intervention whether by right or
permission. Fed. R. Civ. P. 24(a)-(b); see also NAACP v. New York, 413 U.S. 345, 366-69(1973). The Sixth Circuit has set forth five factors for a trial court judge to utilize when determining whether a motion for intervention is timely:
(1)the point to which the suit has progressed;(2)the purpose for which intervention is sought;(3)the length oftime preceding the application during which the proposed intervenors knew or should have known of their interest in the case;(4)the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention. [Blount-Hill, 636 F.3d at 284.]
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No above factor is dispositive, but the "determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances." Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir. 2000). "The absolute measure of time between the filing of the complaint and the motion to intervene is one ofthe least important ofthese circumstances." Id. at 475.
The Applicants' Motion meets all five factors for timeliness. With regard to the first and third factors, the proceeding is currently in its infancy. Plaintiffs filed their Amended Complaint, adding Plaintiffs RISE and DAPRI and four new legal claims, on January 27, 2020, only 23 days before Applicants filed this Motion.(R. 17). Plaintiffs moved for a preliminary injunction and expedited hearing in this case on January 28, 2020 (R. 22; R. 23); Defendant moved to dismiss the Amended Complaint on February 10, 2020,(R. 27); and briefing will not be completed on Defendant's renewed motion to dismiss until February 28,2020(R.29),9 days from now.
The second factor weighs in favor of timeliness, as Applicants seek only to
ensure that their legal interests are adequately represented in this matter from its
early stages and do not seek to cause any delay or reopen settled issues. Cf The Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., No. 10-cv-14360, 2016 WT 4475011 at *5(E.D. Mich. Aug. 25,2016)(finding that this factor did not weigh in favor of timeliness when applicants were class members who wanted to reopen and
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relitigate issues in years-old sealed filings despite their prior opportunity to participate in a class-action settlement fairness hearing).
The lack of prejudice to the original parties likewise weighs in favor of timeliness. Defendant has yet to file an answer and filed her renewed motion to dismiss only 9 days ago.(R. 27). Federal courts in Michigan have repeatedly held that motions to intervene are timely if, as here, they are submitted around the time an answer is filed. Am. Bev. Ass'n v. Snyder, No. 1:11-CV-195, 2011 U.S. Dist. LEXIS 160024, at *7(W.D. Mich. Apr. 26,2011)(holding that motion to intervene filed one day after the defendantfiled its Answer wastimely(citing Mich.State AFLCIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)); see also Parkwest Dev., LLC v. Ellahi, No. 18-CV-0385,2018 U.S. Dist. LEXIS 128988,at *3(E.D. Mich. Aug. 1, 2018)(holding that a motion to intervene filed one month after the defendant submitted its answer was timely). Likewise, the fact that this Court has not yet entered a scheduling order for this case or held a Rule 26(f) conference are further important considerations confirming this motion's timeliness. See Macomb Interceptor Drain Drainage Dist. v. Kilpatrick, 2012 U.S. Dist. LEXIS 63725, at *11 (E.D. Mich. May 7, 2012)(holding that a motion to intervene was timely because the court had not yet issued a scheduling order);455 Cos.,LLC v. Landmark Am.Ins. Co.,No. 16-CV-10034,2016 U.S.Dist.LEXIS 132047,at *5-6(E.D.Mich.
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Sept. 27, 2016)(holding that a motion to intervene filed shortly after the court entered a scheduling order was timely).
Moreover, discovery in this matter has yet to begin, and this Court has not ruled on the substantive merits of Defendant's motion to dismiss the Amended Complaint.(R. 29). Consequently, the parties will suffer no prejudice in the event this Court allows intervention. To the contrary, permitting Applicants to intervene at this point will enable them to assert their defenses without any delay or prejudice to the litigation.
Finally,to the degree that there are unusual circumstances here,they weigh in favor oftimeliness. This case involves fundamental aspects ofelectoral democracy, a fact that weighs in favor of pei mining intervention by Applicants. The Applicants have a strong interest in ensuring the legitimacy of the 2020 General Election, preventing even the appearance ofpartisan considerations in the decision making by the elected officials charged with enforcing and defending Michigan's electioniaws, and protecting the rights of Applicants' members as candidates and voters by ensuring that the general election is conducted in compliance with the U.S and Michigan Constitutions and Michigan's validly passed election laws. For all these reasons, the Applicants' Motion is timely.
B. The Applicants' substantial legal interests will be impaired without intervention.

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The Applicants have substantial legal interests in this action. Demonstrating the existence ofsuch an interest"is not an onerous task." Coal to Defend Affirmative Action v. Granholm,240 F.R.D. 368,375(E.D. Mich. 2006). The Sixth Circuit has recognized a"rather expansive notion ofthe interest sufficientto invoke intervention ofright." Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245(6th Cir. 1997)."For example, an intervenor need not have the same standing necessary to initiate a lawsuit:" .Grutter v: Bollinger, 188 F.3d 394, 398 (6th Cir. 1999). Moreover, a putative intervenor is only required to show that it is "possible" that denial of intervention would impair its interests. N.E. Ohio Coal. for the Homeless v. Blackwell,467 F.3d 999, 1007(6th Cir. 2006)."This burden is minimal."Id.
This Court has traditionally allowed the major political parties of this state and those with interests in the outcome of an election to intervene in litigation regarding elections and election procedures. In Libertarian Party of Mich. v. Johnson, No. 12-CV-12782, 2012 U.S. Dist. LEXIS 126096 (E.D. Mich. Sept. 5, 2012), the Libertarian Party of Michigan challenged the constitutionality of the State's'sore loser" laW, which prohibited a person who had unsuccessfully sought a major party's nomination from being nominated by another party. The district court allowed the Michigan Republican Party to intervene in defense of the statute, holding that it had a "substantial legal interest" in the enforcement ofthe challenged
law: Libertarian Party of Mich, 2012 U.S. Dist. LEXIS 126096 at *4; see also,
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Southerland v. Fritz, 955 F. Supp. 760, 760 (E.D. Mich. 1996) (implicitly recognizing that the MRP had been properly permitted to intervene to oppose the issuance of a temporary restraining order that would compel polling places to be held open in violation of state law); Heitmanis v. Austin, 677 F. Supp. 1347, 1349 (E.D. Mich. 1988) (implicitly recognizing that the Michigan Republican State Central Committee had been properly permitted to intervene in a constitutional challenge to a state law concerning delegates to party conventions), rev'd on other grounds,899 F.2d 621 (6th Cir. 1990). Here,the MRP has a substantial and distinct interest in the continued enforcement ofthe state laws governing paid transportation of voters and absent ballot application harvesting.
The interests ofthe MRP and RNC in this litigation are distinct from those of Michigan's citizenry at large or Defendant Attorney General. Applicants contend that the Paid Driver Ban and Absent Ballot Application Harvesting Ban are constitutionally valid statutes that the legislature has enacted to help structure and ensure the integrity ofthe electoral environment. The MRP and RNC on behalfof their candidates,their voters,and their own institutional interests have a substantial interest in preventing change to the "structur[e] of this competitive environment." Shays v. FEC,414 F.3d 76,85(D.C.Cir.2005).IfPlaintiffs prevail and enforcement ofthe statutes is enjoined,the MRP,RNC,and their candidates will face "a broader range of competitive tactics than [state] law would otherwise allow." Id. at 86. An
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injunction in favor of Plaintiffs would "fundamentally alter the environment in which [they] defend their concrete interests (e.g.... winning reelection)." Id.; see also id. at 87(holding that political candidates have a legally cognizable interest in preventing electoral "competition [becoming] intensified by [statutorily]-banned practices"). In short, because the MRP's and RNC's candidates "actively seek [election or] reelection in contests governed by the challenged rules," they have an interest in "demand[ing]adherence" to those requirements.Id. at 88;see also Nader v. FFC,725 F.3d 226,228-29(D.C. Cir. 2013).
Accordingly, this Court should allow Applicants to intervene to prevent impairment oftheir substantial interests in the structure ofthe electoral environment and enforcement ofthe laws protecting it.
C. Defendant will not adequately protect the Applicants' interests. The Applicants substantial interests may not be adequately protected by
Defendant in this action. The burden to prove inadequacy of representation "should be treated as minimal[,]" Trbovich v. United Mine Workers ofAmerica,404 US 528, 538 n.10 (1972), because "it need only be shown that 'there is a potential for inadequate representation.'" United States v. Mich., 424 F.3d 438, 443 (6th Cir. 2005)(emphasis in original), quoting Grutter, 188 F.3d at 400.
In this case, neither party adequately represents the Applicants' interests. Although the Applicants may seek the same outcome as Defendant,Rule 24 protects
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a proposed intervenor's specific interests in the action. In Johnson, 2012 U.S. Dist. LEXIS 126096, at *3, the Eastern District allowed the MRP to intervene to defend the constitutionality ofthe state's sore loser statute in part because it concluded that the "Secretary ofState does not have an interest in raising and defending the distinct interests of the [MRP] in the enforcement of the Michigan sore loser statute to preclude Gary Johnson's inclusion on the November 6, 2012 ballot." Similarly, in League of Women Voters of Mich v. Johnson, the Sixth Circuit recognized that Republican congressmen from Michigan had "interests that differ from those of[the Secretary of State] and the citizens of Michigan" in a challenge to Michigan's congressional districting map.2 902 F.3d 572, 579-80 (6th Cir. 2018). Here, Defendant's generalized interests in enforcing the law are distinct from the MRP's and RNC's particularized and distinct interests in ensuring that their candidates receive the protections the state legislature adopted through the Paid Driver Ban and Absent Ballot Application Harvesting Ban. In particular, candidates should not face the risk that absent ballot applications submitted in their races will be destroyed, manipulated, or otherwise fraudulently altered by unknown actors.
2 The Sixth Circuit's analysis in League of Women Voters of Mich. addressed the closely related question of permissive intervention pursuant to Rule 24(b), but its analysis with regards to the unique interests of candidates and political parties applies with equal force in the context ofintervention ofright pursuant to Rule 24(a).
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Moreover, courts repeatedly have held that the government's interest in defending a challenged statute is categorically distinct from that of private parties who seek to do so. See Utah Ass'n ofCounties v. Clinton, 255 F.3d 1246, 1255-56 (10th Cir.2001)("[T]he government's representation ofthe public interest generally cannot be assumed to be identical to the individual parochial interest of a particular member of the public merely because both entities occupy the same posture in the litigation."). The State and state officials necessarily represent "the public interest," rather than the MRP's and RNC's "particular interest[s]" in protecting the rights of their voters and candidates. Coal. ofAriz./New Mex. Countiesfor Stable Economic Growth v. DOI, 100 F.3d 837, 845 (10th Cir. 1996). In "represent[ing] the interests of all [Michigan] citizens," Defendant necessarily is inhibited by a variety of considerations that do not similarly impact the MRP and RNC,such as"the expense of defending the current [laws] out of [state] coffers." Clark v. Putnam Cnty., 168 F.3d 458,461 (11th Cir. 1999);see also Meek v. Metro. Dade Cnty.,985 F.2d 1471, 1478 (11th Cir. 1993)("The intervenors sought to advance their own interests in achieving the greatest possible participation in the political process. Dade County, on the other hand,was required to balance a range ofinterests likely to diverge from those ofthe intervenors.").
Because Defendant is a partisan elected official, she must take into account "the social and political divisiveness of the issue" and even "their own desires to
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remain politically popular and effective leaders." Meek, 985 F.2d at 1478; accord Clark, 168 F.3d at 462. In the closely related context of permissive intervention under Rule 24(b), the Sixth Circuit has acknowledged that when there are concerns over an elected official's continued desire to defend existing laws the "case for intervention [is] even stronger, since no other party in the case would be seeking to uphold" the challenged laws if the elected official declines to mount a vigorous defense. League of Women Voters of Mich., 902 F.3d at 580. Other courts have repeatedly relied on such considerations to conclude that governmental defendants are not categorically adequate representatives for private intervenors interests in constitutional and other public law litigation. See, e,g.,Sierra Club v. Glickman,82 F.3d 106, 110(5th Cir. 1996)(holding that the government's representation ofthe general public interest did not adequately represent the intervenor's own narrower interests, despite the similarity in their goals);In re Sierra Club,945 F.2d 776,77980(4th Cir. 1991)(holding that the government could not adequately represent the interests of a private litigant because it necessarily must consider and protect the interests of opposing parties, as well).
Applicants have reason to question whether Defendant,in her official capacity as Attorney General, will enforce and defend the Paid Driver Ban and Absent Ballot Application Harvesting Ban.During her short term,Defendant has demonstrated that
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she will decline to enforce select laws in Michigan with which she disagrees, as
evidenced by the following:
• Enbridge Energy Line 5 Dispute: Defendant opined that 2018 PA 359("Act 359), which amended the Mackinac Bridge Authority Law, MCL 254.311 et seq,to allow Enbridge's Line 5 tunnel beneath the Straights ofMackinac,was unconstitutional.(OAG No. 7309). Specifically, Defendant opined that Act 359 allegedly violates the Title-Object Clause, Mich. Con. 1963, art 4, § 24. The Michigan Court of Claims ruled against Defendant's constitutional argument, holding that Act 359 is constitutional. This case remains pending.
• Faith-Based Adoption Agencies: Defendant and the ACLU signed a settlement agreement in Dumont v. Lyon, No. 2:17-cv-13080 (E.D. Mich, 2019), in an effort to preclude the state of Michigan from working with faithbased adoption agencies, thus violating Michigan law protecting faith-based adoption agencies. See Order on Stipulation ofDismissal,Dumont,No.2:17cv-13080(E.D. Mich),ECF No.83. After the Dumont settlement, St. Vincent Catholic Charities, a faith-based adoption agency, brought suit against Defendant for her unconstitutional enforcement of Michigan adoption law. Buck v. Gordon, No. 1:19-cv-286 (W.D. Mich). The district court denied Defendant's motion to dismiss and granted a preliminary injunction to preserve the status quo for adoptions in Michigan.(Exhibit 1, Opinion,Buck, No. 1:19-cv-286(W.D. Mich),ECF No.69). This case remains pending.
Although Defendant and Applicants agree that dismissal is the appropriate outcome,
in light of this concerning track record, Applicants seek to intervene at this early
stage of litigation to protect their substantial interests in the 2020 elections from a
potentially adverse or unlawful settlement later in the litigation.3
3 In addition, in League of Women Voters ofMich. v. Johnson, No. 2:17-cv-14148 (E.D. Mich.), the Secretary of State entered into a settlement agreement with the plaintiff(whose counsel was a former chairman ofthe Michigan Democratic Party) that would have impacted 11 state House districts and required Michigan lawmakers to redraw the districts deemed unconstitutional. The court rejected this settlement,
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For these reasons, it is sufficiently possible that Defendant will not adequately represent and protect the Applicants distinct substantial interests. II. In the alternative, the Court should grant permissive intervention.
At the least, this Court should exercise its broad discretion to allow the MRP and RNC to intervene in this lawsuit. Rule 24(b)(1) provides that, "On timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact." In deciding whether to allow a party to intervene, "the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). "So long as the motion for intervention is timely and there is at least one common question of law or fact, the balancing of undue delay, prejudice to the original parties, and any other relevant factors is reviewed for an abuse ofdiscretion." League of Women Voters ofMich.,902 F.3d at 577.
The Applicants satisfy all elements necessary for permissive intervention under Rule 24(b). First, Applicants' motion is timely. The Sixth Circuit uses the same five factors to determine the timeliness ofa permissive-intervention motion as
ruling that the Secretary ofState "lacks the authority absent the express consent of the Michigan Legislature, which she lacks—to enter into the proposed consent decree." (Exhibit 2, Order Denying Joint Motion to Approve Consent Decree, League of Women Voters ofMich., No. 2:17-cv-14148(E.D. Mich.),ECF No. 235). Applicants seek similarly to protect against a settlement to which they would not consent.
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an intervention-as-of-right motion. See Stotts v. Memphis Fire Dep't,679 F.2d 579, 582(6th Cir. 1982). Because this case is still in its infancy,and for the other reasons stated above,the Applicants have moved to intervene on a timely basis.
Second, Applicants seek to assert defenses that share "common questions of law [and] fact" with Plaintiffs' action regarding the constitutionality of Michigan's 'election laws.Fed.R.Civ.P.24(b)(3). Plaintiffs allege that the Paid Driver Ban and Absent Ballot Application Harvesting Ban in Michigan are unconstitutional. The Applicants reject these allegations and contend not only that these long-standing election laws in Michigan are constitutional, but that the relief sought by Plaintiffs would undermine the interests of the MRP,RNC,and their members. Cf. Johnson, 2012 U.S. Dist. LEXIS 126096, at *4(allowing the MRP to intervene to defend the constitutionality of Michigan's sore loser law because both the MRP and the state sought a determination as to whether the statute could be applied in the upcoming election). Granting intervention will allow this Court to evaluate all ofthe competing claims and arguments, preventing piecemeal, protracted litigation, and the possibility ofconflicting legal decisions.
Third, allowing Applicants to intervene will neither delay this litigation nor prejudice the parties. See Fed. R. Civ. P. 24(b)(3). The Applicants have filed this motion for leave to intervene within days of Plaintiffs filing their Amended Complaint and motion for injunctive relief. (R. 17; R. 22). This motion is
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accompanied by Applicants' responsive pleading, as required under Rule 24(c). Their defenses raise questions of law that are unlikely to require discovery or an evidentiary hearing. See Assoc. Gen. Contr. OfOhio, Inc. v. Drabik,214 F.3d 730, 734(6th Cir. 2000)("The constitutionality of a statute is a question oflaw .. . ."). And the Court has not yet ruled on Plaintiffs' standing or whether the Paid Driver Ban and the Absent Ballot Application Harvesting Ban are constitutional. Further, allowing intervention would promote the Court's ability to reach an expeditious resolution in this matter. Intervention will not cause delay or prejudice to the original parties, as Applicants will submit all filings in accordance with whatever briefing schedules the Court imposes, simultaneously with Defendant unless ordered otherwise. Allowing intervention now would prevent the later need for collateral challenges to an unlawful or prejudicial settlement, and significantly simplify proceedings in this matter.
In sum, because the rules governing intervention are to be liberally construed in favor of permitting intervention by parties, Applicants' defenses raise common questions oflaw and fact with the claims already before the Court,and intervention will not result in undue delay or prejudice to the existing parties, this Court should grant Applicants' motion for permissive intervention.
CONCLUSION
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For the foregoing reasons, the Applicants respectfully request that this Court grant its Motion to Intervene and permit them to intervene in this action as party defendants.
BUTZEL LONG,PC By:/s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) Steven R. Eatherly(P81180) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313)225-7000 wilder@butzel.com eatherly@butzel.com DATED: February 19, 2020 CERTIFICATE OF SERVICE I hereby certify that on February 19, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel ofrecord. By: /s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) 150 W.Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com
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Exhibit 1

Case 4:19-cv-13341-SDD-RSW ECF No. 33-1 filed 02/19/20 PageID.526 Page 2 of 33 case 1:19-CV-UU2t3b-HJJ-1-',K3 EU- NO. b9 mea U9/2b/19 Pageiu.z498 Pagel OT ;32

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA BUCK,et al.,
Plaintiffs,
v.
ROBERT GORDON,in his official Capacity as Director ofthe Michigan Department of Health and Human Services, et al.,
Defendants.

CASE NO. 1:19-CV-286 HON.ROBERT J. JONKER

OPINION INTRODUCTION This case is not about whether same-sex couples can be great parents. They can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State. Whatthis case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.In 2015, Michigan's state legislature passed a law designed to ensure it could dojust that. And when the State was first sued on the issue, the State defended the right of St. Vincent to maintain its religious belief while it placed children on a non-discriminatory basis in any home approved by the State. Butthat changed in the wake ofthe 2018 general election. While a candidate for Michigan Attorney General, Dana Nessel called the law indefensible. She indicated that she would not defend the State's position in the litigation challenging the law, because she "could not justify

Case 4:19-cv-13341-SDD-RSW ECF No. 33-1 filed 02/19/20 PageID.527 Page 3 of 33 ease 1:19-CV-UU28b-1-<JJ-1-1JU EUI- NO. b9 mea U912b/19 Fiageiu.2499 Page z of
using the state's money"to defend"alaw whose only purpose is discriminatory animus."Leading up to the campaign, she described proponents of the law as "hate-mongers" who disliked gay people more than they cared about children. Candidate Nessel won the election, and shortly after taking office, she changed the State's position toward St. Vincent. Under the Attorney General's current interpretation ofMichigan law and the parties' contracts,St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types.
Because the record demonstrates that the State's new position targets St. Vincent's religious beliefs, strict scrutiny applies, and St. Vincent has established a basis for preliminary injunctive relief to preserve the status quo while the validity of the State's new position is tested in plenary litigation.
BACKGROUND A. The Parties St. Vincent Catholic Charities ("St. Vincent") is a non-profit, faith-based organization based in Lansing, Michigan.(Snoeyink aff., ECF No. 6-1, PageID.228-229.) Its mission is "to share the love of Christ by perfori ling the corporal and spiritual works of mercy." (Id., PageID.229.)St. Vincentfocuses on serving children and families and provides a range ofservices, including, without limitation, adoption and foster placement; professional mental health and substance abuse counseling; marriage and family counseling; and refugee resettlement. (Id., PageID.228-229.) This case centers on St. Vincent's adoption and foster placement services. Plaintiffs Chad and Melissa Buck have adopted four siblings through St. Vincent.(M.Buck aff., ECF No. 6-2, PageID.262.) The Bucks "see fostering and adopting not just as a choice we made,but as a ministry and as a calling" based on their Christian beliefs.(Id.)They chose to work
2

Case 4:19-cv-13341-SDD-RSW ECF No. 33-1 filed 02/19/20 PageID.528 Page 4 of 33 ease 1:19-CV-UU2bb-HJJ-PJU EU- NO. b9 inea U9/Zb/19 Pageiu.zbuu Page 3 Ot
with St. Vincent "because we were comfortable working with an agency with a religious mission to serve children." (Id.) Melissa Buck notes that St. Vincent "provides ongoing services to our family[,]" including by facilitating a monthly parent support group that is the "only parent support group for foster parents anywhere in the tri-county area."(Id.,PageID.265.)The group is open to any parents, including same-sex couples, and same-sex couples have attended from time to time. (Id.) The Bucks have worked with St. Vincent to recruit foster and adoptive families, and they sometimes help lead the parent support group.(Id.)Melissa Buck is"aware ofmany[adoptive and foster] families who would not be willing or able to transfer their license to another agency and continue adopting or fostering children if St. Vincent were forced to close its foster and adoption programs."(Id., PageID.266-67.)
Plaintiff Shamber Flore was removed from her birth home when she was five years old after years ofabuse, neglect, and exposure to drugs, gangs,and prostitution.(Flore aff., ECF No. 6-3,PageID.272.)St. Vincent placed her and her two siblings with an adoptive family,the Flores. (Id.)The Flores"had previously tried to adopt with a state adoptive agency and had a very negative experience."(Id.) They "would not have been able to continue with the adoption process ifthey had not found in St. Vincent a trusted partner and ally." (Id.) The Flores have adopted sixteen children over the past fourteen years. (Id.) Ms. Flore "mentor[s] other foster kids and youth at St. Vincent who have dealt with trauma and abuse."(Id.,PageID.273.)She shares her experience and "encourage[s]them that they,too, can overcome great hardship and find happiness."(Id.)If St. Vincent had to cease its adoption and foster services, Ms.Flore"would lose the opportunity to mentor many ofthese youth as a volunteer at St. Vincent."(Id.)
Defendant Robert Gordon is the Director of Michigan Department of Health and Human Services("MDHHS"or "the Department"), which is the state agency responsible for foster care
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and adoption services. (ECF No. 1, PageID.7.) Defendant Herman McCall is the Executive Director of Michigan's Children's Services Agency("CSA"), which is a sub-agency of MDHHS that oversees the work of all private child placing agencies. (Id., PageID.8.) Defendant Dana Nessel is the Attorney General ofthe State ofMichigan.(Id.)These three Defendants(collectively, the "State Defendants" are sued in their official capacities only. Defendant Alex M. Azar is the Secretary ofthe United States Department ofHealth and Human Services("HHS")and is sued in his official capacity only.(Id.,PageID.8-9.)Defendant HHS is responsible for the promulgation, administration, and enforcement offederal regulations challenged in this case.(Id.,PageID.9.)
B. Michigan's Foster and Adoption System "Michigan has a chronic shortage of foster and adoptive homes." (ECF No. 6-1, PageID.286.)In Michigan,there are "approximately 13,000 children in foster care,about 2,000 of whom have a permanency goal ofadoption."(Neitman aff. ECF No.34-5,PageID.971.)MDHHS administers the State of Michigan's Foster Care and Adoption Services programs as the Title IV-E agency in Michigan.(Goad aff., ECF No.34-2. PageID.966.)MDHHS "holds 137 contracts with 57 private child placing agencies,or CPAs,to provide foster care or adoption services throughout Michigan."(Id.)1 MDHHS not only contracts with CPAs to provide foster and adoption services but also is itself a CPA that may provide foster care services. (Id., PageID.967.) Most adoption services in Michigan are privatized.(Id.)St. Vincent provides both foster and adoption services in Michigan under contracts with the State."Mil the last four fiscal years, St. Vincent has served an average of 74 children in its foster care program every year, and through its work over 100 adoptions for foster children were finalized."(Snoeyink aff.,ECF No.6-1,PageID.228.)
1 Elsewhere the record states that the State contracts with over 90 private agencies to provide foster and adoptive support.(Snoeyink aff,ECF No.6-1,PageID.232.)This potential factual inconsistency does not affect the preliminary injunction analysis, and the Court is making no findings of fact in this Opinion.
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To become a foster or adoptive parent in Michigan, a person or couple must first obtain a license from the State. Private CPAs not only place children in licensed foster and adoptive homes, but also assist prospective foster or adoptive parents in applying to the State for licensure. As part ofthe application process,a CPA performs a home evaluation ofthe prospective parent or parents that includes a written assessment and a recommendation that a license be granted or denied. Based partly on the CPA's recommendation, the State itself decides whether to license the prospective foster or adoptive parent.
MDHHS establishes the criteria to consider in perfoiiiiing a home evaluation.(Neitman aff., ECF No. 34-3, PageID.973.) Factors for consideration include, without limitation, the "'[s]trengths and weaknesses' ofthe parents and the [s]trengths ofthe relationship' between the couple[;] .... marital and family status and history, including current and past level of family fiinctioning and relationships, parenting skills and childrearing techniques, values and the role of religion in the family." (Id.) A home evaluation entails "an exhaustive review of the family's eligibility" that includes an assessment of"the relationships between all the adults living in the home[.]" (Snoeyink aff., ECF No. 6-1, PageID.229-30.) The State's required home evaluation form spans twelve pages.(Id., Ex. A,PageID.241-253.) The form calls for subjective as well as objective determinations. For example, the evaluating CPA must describe for each adult member ofthe household "strengths and weaknesses,worker's assessmentin addition to whatthe applicant tells you."(Id.,PageID.245.)Similarly,the fonn asks the evaluating CPA to describe "marital and family status and history" and to include as to the current relationship "strengths of relationship, areas of work or attention .... level of satisfaction, stability." (Id., PageID.246.) For each child living in the home, the form asks the evaluating CPA to interview the child and describe the "[w]orker's assessment of the child's adjustment, development, special needs, relationships with
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parents and their significant others,and other strengths and weaknesses."(Id.)The evaluating CPA must note whether "anyone in the household [has] a physical or mental health diagnosis or condition that would make care ofthe child difficult" and,ifso,"describe how it may affect the care ofa child."(Id.,PageID.247.)The form asks the evaluating CPA to make a recommendation regarding licensure and to detail "[i]ssues to be considered in making placements." (Id., PageID.251.)
St. Vincent states that "as a Catholic organization, [it] cannot provide a written recommendation to the State evaluating and endorsing a family situation that would conflict with [its] religious beliefs." (ECF No. 6-1, PageID.231.) "St. Vincent cannot provide written recommendations and endorsements of unmarried or LGBTQ couples consistent with its Catholic mission. Nor does St. Vincent want to send the State written recommendations that all unmarried or LGBTQ couples who come to it are unsuitable for adoption." (Id.) When an unmarried or LGBTQ couple approaches St. Vincent to assist in the foster or adoption certification process, St. Vincent simply refers the couple to other agencies that can help. St. Vincent provides the prospective unmarried or LGBTQ couple with "written information on the State's website and contact information for a list of other local adoption or foster care service providers" willing and able to assist the family. (Id., PageID.235.) Thus, "St. Vincent stands aside and allows other qualified agencies to make recommendations on behalf of unmarried or LGBTQ couples."(Id.) Historically, the State of Michigan has permitted St. Vincent to refer prospective parents to other agencies if St. Vincent's sincerely held religious beliefs prevented it from assisting with the certification and licensing recommendation process.2
2 Ms. Snoeyink avers that "[p]rivate agencies in Michigan have always been able to refer families to other agencies (or return a referral to DI-IHS)for a variety ofother reasons," such as"(1)the family may live further away than the agency would like to drive for home visits,so they refer them to a closer agency,(2)the agency already has a waiting
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St. Vincent does not prevent any couples, same-sex or otherwise, from fostering or adopting. (Id., Page ID.235.) To the contrary, same-sex couples "certified through different agencies have been able to adopt children in St. Vincent's care in the past" using the Michigan Adoption Resource Exchange ("MARE") process. (Id., PageID.235-36.) MARE'S website "includes information about all children currently seeking adoption in the State[,]...[and]families certified by any ofthe numerous private child placing agencies in Michigan are allowed to adopt every child on MARE's website — no family is disqualified from adopting a child based solely on the agency with which they work."(Id.,PageID.236.)Through this process,any certified adoptive family, whether a same-sex couple or otherwise, may adopt children in St. Vincent's care. (Id., PageID.235-36.)3 St. Vincent "immediately places all children within its care on MARE." (Snoeyink aff.,ECF No.42-4,PageID.1662.)
C. Contracts and Funding The present contract for adoption services(the "adoption contract" or"contract")between the State of Michigan and St. Vincent became effective on October 1, 2016 and has a teiiuination date of September 30, 2019.4 Under the heading "Compliance Requirements," the adoption contract states: c. The Contractor shall comply with the MDHHS non-discrimination statement:
Michigan Department ofHealth and Human Services(MDHHS)will not discriminate against any individual or group because ofrace,sex,religion,
list,(3)the family has not been satisfied with the agency's services, and(4)the family is looking for a specific type ofchild not currently in that agency's care."(Id.,PageID.238.) 3 St. Vincent notes that it "happily serves both LGBTQ individuals and children" in a variety of ways. (Id., PageID.231.)For example,St. Vincent serves LGBTQ children in its foster program and group home,and St. Vincent welcomes LGBTQ couples at the parent support group it facilitates.(Id.) 4 The adoption services contract between the State and St. Vincent, as amended, may be viewed in its entirety as part of the public record in Dumont v. Gordon, Case No. 2:17-cv-13080(E.D. Mich. Sept. 20, 2017)(ECF Nos. 16-2, 16-10).
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age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability.
The above statement applies to all MDHHS supervised children, and to all applications filed for adoptions ofMDHHS supervised children,including MDHHS supervised children assigned to a contracted agency.
(ECF No.6-12,PageID.352.)5
Under the same heading, "Compliance Requirements," the adoption services contract
states:
e. Under 1973 PA 116, as amended by 2015 PA 53, the Contractor has the sole discretion to decide whether or not to accept a referral from MDHHS. Nothing in this Agreement limits or expands the application of the Public Act.
Adoption referrals are initiated by MDHHS. Contractors may not transfer adoption cases to another child placing agency. After acceptance of an adoption referral, the Contractor may not transfer the case back to the Department, except upon the written approval of the County Director, the Children's Services Agency Director, or the Deputy Director.
(ECF No.6-12,PageID.352.)
The present contract for foster services (the "foster contract" or the "contract") between
the State of Michigan and St. Vincent became effective on October 1, 2018 and terminates on
September 30,2021.(ECF No.6-9,PageID.323.)The foster contract states that
[e]xcept as provided in subsection (h), the Contractor shall comply with the following requirements:.... The Contractor shall comply with the MDHHS non-discrimination statement:
Michigan Department of Health and Human Services(MDHHS)will not discriminate against any individual or group because ofrace,sex,religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs, or disability.
The above statement applies to all licensed and unlicensed caregivers and families and/or relatives that could potentially provide care or are currently providing care for MDHHS supervised children, including MDHHS supervised children assigned to a contracted agency.
5 The language quoted here is modified to reflect Amendment No. 1, which appears in Dumont at ECF No. 16-10, PagelD.338-39.
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(ECF No.34-7,PageID.1047-48.)6 Subsection(h)provides Under 1973, PA116, as amended by 2015 PA53, the Contractor has the sole discretion to decide whether to accept or not accept a referral from MDHHS. Nothing in this Agreementlimits or expands the application ofthis Public Act.
(Id., PageID.1049.) The foster contract also states that [i]f MDHHS makes a referral to a child placing agency for foster care case management services pursuant to a contract with the child placing agency,the child placing agency must accept or decline the referral within one hour of receipt of the referral....After acceptance of a foster care referral, the Contractor may notrefer the case back to the Departmentexceptforthe reasons outlined in the Children's Foster Care Manual("FOM")or upon the written approval ofthe County Director,the Children's Services Agency Director, or the Deputy Director.
(ECF No.6-9,PageID.323.) Michigan pays private CPAs, including St. Vincent, for providing foster and adoptive
placements"using a mix ofstate and federalfunds,including fundsfrom TitleIV-E and Temporary Assistance for Needy Families block grants."(ECF No. 6-1, PageID.232.) Michigan generally pays a per diem to the agency overseeing a foster placement only after the CPA places the child with a licensed family.(Id.) For most adoptions from foster care,"the State makes payments to the agency as part of the foster care system in pre-adoptive placements, and makes a lump-sum payment to the agency after the adoption is complete." (Id., PageID.232-33) According to St. Vincent, "Hrivate agencies generally do not bill the State, nor are they compensated, for performing home studies for prospective foster or adoptive parents."(Id.,PageID.233.)Subject to
6 The foster contract in the record(ECF No.34-7)is an amended version ofthe foster contract that became effective in 2014 and expired on September 30,2017. No one has disputed that the same language appears in the foster contract having an effective period from October 1, 2018 — September 30,2021.
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a narrow exception,' St. Vincent itself "pays for home studies, assessments, and its general

recruitment with private funds in a cost center that is kept separate from the funding provided by

the State for other child welfare activities."(ECF No.6-1,PageID.233)

D. Michigan Legislation

Both the adoption and foster contracts refer explicitly to "1973,PA 116, as amended by

2015 PA 53," codified as MICH.COMP.L.§ 722.124e and § 722.124f(the "2015 statute or"2015

law"). In enacting the 2015 law,the Michigan legislature noted,"It is the intent ofthe legislature

to protect child placing agencies' free exercise of religion protected by the United States

constitution and the state constitution of 1963. This amendatory act is not intended to limit or deny

any person's right to adopt a child or participate in foster care." MICH. COMP. L. § 722.124e,

Historical and Statutory Note. The 2015 statute itself states,

(1) The legislature finds and declares all ofthe following:

(a)

When it is necessary for a child in this state to be placed with

an adoptive or foster family, placing the child in a safe, loving, and

supportive home is a paramount goal ofthis state.

(c) Having as many possible qualified adoption and foster parent agencies in this state is a substantial benefit to the children of this state who are in need of these placement services and to all of the citizens of this state because the more qualified agencies taking part in this process, the greater the likelihood that permanent child placement can be achieved.
(d) As of the effective date of the [legislation], the adoption and foster care licensees of this state represent a broad spectrum of organizations and groups, some of which are faith based and some of which are not faith based.
(e) Private child placing agencies, including faith-based child placing agencies, have the right to free exercise ofreligion under both the state and federal constitutions. Under well-settled principles of
7 "In exceptional circumstances, the state has unique contracts it provides where it does pay agencies specifically for licensing a relative for a kincare placement."(Id., PageID.233,PageID.254-59.)
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constitutional law,this right includes the freedom to abstainfrom conduct that conflicts with an agency's sincerely held religious beliefs.
(g) Children and families benefit greatly from the adoption and foster care services provided by faith-based and non-faith-based child placing agencies. Ensuring that faith-based child placing agencies can continue to provide adoption and foster care services will benefit the children and families who receive publicly fiinded services.
(h) Under well-established department contracting practices, a private child placing agency does not receive public funding with respect to a particular child or particular individuals referred by the department unless that agency affirmatively accepts the referral.
(2) To the fullest extent permitted by state and federal law,a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency's sincerely held religious beliefs contained in a written policy, statement offaith, or other document adhered to by the child placing agency.
(3) To the fiillest extent permitted by state and federal law,the state or local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide any services that conflict with, or provide any services under circumstances that conflict with, the child placing agency's sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.
(4) If a child placing agency declines to provide any services under subsection (2), the child placing agency shall provide in writing information advising the applicant of the department's website, the Michigan adoption resource exchange or similar subsequently utilized websites, and a listing of adoption or foster care service providers with contact information and shall do at least 1 ofthe following:
(a) Promptly refer the applicant to another child placing agency that is willing and able to provide the declined services.
(b) Promptly refer the applicant to the webpage on the department's website that identifies other licensed child placement agencies.
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(6) If a child placing agency declines to provide any services under subsection(2),the child placing agency's decision does not limit the ability of another child placing agency to provide those services.
(7) For the purpose ofthis section: (a) "Adverse action"includes,butis notlimited to,denying
a child placing agency's application for funding, refusing to renew the child placing agency's funding, canceling the child placing agency's funding, declining to enter into a contract with the child placing agency, refusing to renew a contract with the child placing agency, canceling a contract with the child placing agency, declining to issue a license to the child placing agency,refusing to renew the child placing agency's license, canceling the child placing agency's license,taking an enforcement action against a child placing agency, discriminating against the child placing agency in regard to participation in a government program,and taking any action that materially alters the terms or conditions of the child placing agency's funding, contract, or license.
(b) "Services" include any service that a child placing agency provides, except foster care case management and adoption services provided under a contract with the department.
MICH.COMP.L.§ 722.124e.
St. Vincent's executive director testified before the legislature in support ofthe legislation.
After the enactment of the 2015 statute, MDHHS updated its adoption services master contracts
"to reflect changes to state law that permit a private agency to decline to serve an individual based
on the agency's religious beliefs."(Bladen memorandum,ECF No.6-14,PageID.372.)
E. DumontLitigation
In 2017, the ACLU on behalf of two same-sex couples sued MDHHS for allowing
St. Vincent to refer prospective parents to other agencies for assistance if St. Vincent's sincerely
held religious beliefs prevented it from assisting with the certification and licensing
recommendation process. Dumont v. Gordon, Case No. 2:17-cv-13080 (E.D. Mich. Sept. 20,
2017). Amici curiae in this case were plaintiffs in the Dumont case. The State initially defended
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the suit, invoking the 2015 statute in support of its position.8 But that changed after the general election in November of 2018, when new leaders assumed power in Michigan. During her campaign for Attorney General,Defendant Nessel asserted that there was"no viable defense"for the statutes enacted under 2015 PA53 and that the 2015 statutes' "only purpose is discriminatory animus." Ed White, Dem AG candidate: Adoption law discriminates against gays, Associated Press (Sept. 27, 2018), https://apnews.com/alfc021e8e2e4b3b829586ba56ad9c07 (last visited September 4,2019). According to the same article, Defendant Nessel indicated that she would not be inclined to defend the Dumont lawsuit against MDHHS,because she "could notjustify using the state's money defending a law whose only purpose is discriminatory animus."(Id.)9
The ACLU and the State announced a settlement in the Dumont litigation in March 2019, and the Court granted a motion for stipulated dismissal. The Court dismissed the plaintiffs' claims against the State "with prejudice pursuant to the terms of the Settlement Agreement." The Court retained jurisdiction over the enforcement of the Settlement Agreement under Kokkonen v. Guardian LifeIns. Co. ofAm.,511 U.S.375(1994),and its progeny.(ECF No.31-6,PageID.74647.)The Court was not asked to approve or disapprove the terms ofsettlement. Nor did the Court reach a final merits determination one way or the other on the issues.
Among other things, the Settlement Agreement provides: Unless prohibited by law or court order:
8 Plaintiffs St. Vincent, Chad and Melissa Buck, and Shamber Flore were granted leave to intervene in the Dumont case on the side of the State defendants in that case. 9 In 2015, before her election, Defendant Nessel reportedly said ofPA 53 "[Wiese types oflaws are a victory for the hate mongers but again a disaster for the children and the state." Fox 2 Detroit, Opponents say adoption bill discriminates against gays and lesbians(Mar.4,2015,5:34 p.m.), http://wwwfox2detroit.cominews/opponents-sayadoption-bill-discriminates-against-gays-and-lesbians (last visited September 4, 2019). Another article describes her as stating,"If you are a proponent ofthis type of bill, you honestly have to concede that you just dislike gay people more than you care about the needs of foster kids." Rick Pluta, Faith-based adoption bills headed to House floor, Michigan Radio NPR(Mar.4,2015), https://www.m ichiganradio.org/post/faith-based-adoption-bilIs-headed-housefloor(last visited September 4,2019).
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a. The Departmentshall continue including in Contracts,and shall continue requiring all Contractors to include in Subcontracts, the NonDiscrimination provision, or a materially and substantially similar provision....
b. For the avoidance of doubt, policies and practices prohibited under the Non-Discrimination Provision include, without limitation,
i. turning away or referring to another contracted CPA an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract;
iii. refusing to perform a home study or process a foster care licensing application or an adoption application for an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract; and
d. The Department shall require all Contractors to enforce the Non-Discrimination provision or Similar Provision against a CPA that the Contractor or the Department determines is in violation of, or is unwilling to comply with,such provisions ... up to and including termination ofthe Subcontracts ... including without limitation:
i. In the event a CPA refuses to comply with the NonDiscrimination Provision or Similar Provision within a reasonable time after notification by the Contractor or the Department of a Subcontract Violation, the Department will require the Contractor to telininate the CPA's Subcontracts."
(ECF No.31-5,PageID.719-720.)
In a public statement(the"Summary Statement")summarizing the Settlement Agreement,
the State explains that "a significant portion of funding" for the State's foster care case
management and adoption services comes from the federal Title IV-E program. Michigan
Government, Summary Statement of Dumont v. Gordon Settlement Agreement,
littps://www.michigan.gov/documents/ag/03.22.19 FINAL Dumont settlement summary 6500
97 7.pdf. Citing 45 C.F.R. 75.300(c), the Summary Statement notes that "as a condition of
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receiving these federal funds, the United States Department of Health and Human Services requires that states' Title IV-E-funded programs prohibit discrimination on the basis of sexual orientation or gender identity." (Id.) The Summary Statement explains that "in compliance with this federal requirement, MDHHS contracts mandate that, except for an agency's sole discretion to decide whether to accept a referral from MDHHS,all agencies must comply with MDHHS's non-discrimination statement when providing state-contracted services." (Id.)10 The Summary Statement posits that if an agency accepts an MDHHS referral of a child for foster or adoption services, the agency relinquishes the "discretion to refitse to provide the accepted child or individual with state-contracted foster care case management or adoption services that conflict with its sincerely held religious beliefs" and remains subject to "the terms ofthe agency's contract with the State expressly prohibit[ing] discrimination in the provision ofthese contracted services." (Id.) According to the Summary Statement, prohibited discriminatory conduct includes, without limitation,"refusing to perform a home study or process a foster care licensing application or an adoption application for an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the agency for contracted services." (Id.)
The Depattiuent ofAttorney General"determined that MDHHS may be subject to liability on [the Dumont] Plaintiffs' claims" and "strongly recommended resolving the case on terms that are consistent with the law and existing agency contracts[.]"(Id.)The Summary Statement points out that on the dates that St. Vincent referred the Dumont plaintiffs elsewhere for certification and recommendation services, St. Vincent "was providing foster care case management services or
10 The exception is based the statutory provision in MICH. COMP. L. 722.124e(h) that "an agency does not receive public funding with respect to a particular child or particular individual referred by MDHHS unless the agency affirmatively accepts the referral."(Id.)
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adoption services for one or more children for whom the agency had accepted an MDHHS referral." (Id.) No exception applied, because "Plaintiffs were not seeking direct-placement or private adoption services,and they did not approach the agencies through an MDHHS referral that the agencies could accept or reject under existing state law." (Id.) The Summary Statement concludes that "consequently, [St. Vincent] was contractually prohibited from discriminating against Plaintiffs as potential qualified foster care or adoptive families for any child for whom the agencies were providing services under contract with MDHHS." (Id.) Under the State's new position, St. Vincent was no longer permitted based on its religious beliefs to refer unmarried and same-sex couples to other agencies for certification review and assistance, even though it was continuing to make non-discriminatory placements for all the children for whom it had accepted referrals.
The Summary Statement emphasizes that the Settlement Agreement provides that MDHHS will "maintain federally required non-discrimination provisions in its foster care and adoption agency contracts"and that"settling the Dumontlitigation on the terms ofthe settlement agreement "allows MDHHS to avoid liability on Plaintiffs' claims and remain compliant with federal and state law."(Id.)
F. MDHHSEnforcement An MDHHS Communication Issuance regarding the Dumontsettlement notifies recipients, including St. Vincent, of requirements under the Settlement Agreement.(ECF No. 42-2.) The Communication Issuance advises that the Settlement Agreement requires the MDHHS to "investigate reports of alleged non-compliance with the non-discrimination provision" and to "[i]nitiate contract action when violations occur or when an agency expresses unwillingness to comply."(Id.,PageID.1574.)The CommunicationsIssuance reiterates that"policies and practices
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prohibited under the non-discrimination provision include,among others:...[r]efusing to perfoim a home study or process a foster care licensing application or an adoption application for an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a contract or a subcontract." (Id.)
After the filing of the Dumont litigation, the MDHHS opened an investigation into allegations that St. Vincent was not complying with the non-discrimination provision.(Neitman aff.,ECF No.34-3,PageID.976.)MDHHS has not finalized its investigation ofSt. Vincent due to the present lawsuit. (Id., PageID.978.) The State says that after completing the investigation, if a violation is found,"St. Vincent would have the opportunity to complete a corrective action plan demonstrating how it would achieve compliance."(Id.) If St. Vincent elects not to comply,"the Department could take licensing and/or contract action." (Id.) St. Vincent anticipates that the MDHHS will terminate or decline to renew the foster and adoption contracts unless St. Vincent agrees to perfoiiii home studies and provide written evaluations and recommendations for samesex couples who wish to apply for certification. If unable to partner with the State, "St. Vincent would not be able to continue its adoption and foster programs ... either legally or financially." (Snoeyink aff,ECF No.6-1,PageID.237.)
G. CurrentProceedings St. Vincent,the Bucks,and Ms. Fiore filed this lawsuit on April 15,2019. Plaintiffs claim that:(1)Defendants have violated the Free Exercise Clause ofthe First Amendment by "adopting a policy requiring the State to discriminate against child placing agencies with religious objections to same-sex marriage" and granting individualized exemptions from child placing agency requirements selectively (Complaint, ECF No. 1, PageID.42-46 );(2) Defendants have violated
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the Free Speech Clause of the First Amendment by "conditioning St. Vincent's license, its contracts with MDHHS, and the ongoing ability to engage in the religious exercise of helping children in need, on St. Vincent's willingness to make [affirmative statements that contradict St. Vincent's religious beliefs];" (3) Defendants have retaliated against Plaintiffs for protected speech and religious exercise,in violation ofthe Free Exercise and Free Speech clauses ofthe First Amendment;(4) Defendants have violated the Free Exercise and Establishment Clauses of the First Amendment by applying laws in a manner that selectively penalizes Plaintiffs for their religious beliefs; (5) Defendants have violated the Equal Protection Clause of the Fourteenth Amendment by penalizing Plaintiffs because of their religious beliefs while allowing contractors espousing contrary religious beliefs to maintain contractual relationships with the State; and (6) Defendants have violated the RFRA by enforcing federal law in a manner that substantially burdens Plaintiffs' sincere religious exercise without a compelling government interest and through a means more restrictive than necessary to achieve the stated interest.
Plaintiffs now seek a preliminary injunction that would(1)enjoin State Defendants from terminating or suspending performance of their contracts with St. Vincent, or declining to renew the contracts or taking other adverse action against St. Vincent "for engaging in protected speech and religious exercise, including continuing to refer couples to other agencies when St. Vincent cannot assistthose couples due to its religious beliefs";and(2)enjoin DefendantAzarfrom"taking any enforcement action under 45 CFR 75.300(c) based upon St. Vincent's protected speech and religious exercise or upon Michigan's actions to accommodate such protected speech and religious exercise." The Federal and State Defendants seek dismissal under Rule 12(b)(2)and 12(b)(6). The motions are fully briefed, and the Court has heard oral argument on the motions. The Court addresses the motions in turn.
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LEGAL STANDARDS AND DISCUSSION 1. MotionforPreliminaryInjunction
"The purpose of a preliminary injunction is simply to preserve the status quo" until a trial on the merits can be held. UnitedStates v.EdwardRose&Sons,384 F.3d 258,261 (6th Cir.2004). Accordingly, "findings of facts and conclusions of law made by a district court in granting a preliminary injunction are not binding at a trial on the merits." Id. (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). To determine whether a preliminary injunction is warranted, a district court considers: "(1) whether the movant has a strong likelihood of success on the merits;(2) whether the movant would suffer irreparable injury absent the injunction;(3) whether the injunction would cause substantial harm to others;(4) whether the public interest would be served by the issuance of an injunction." Hall v. Edgewood Partners Ins. Center, Inc., 878 F.3d 524, 526 (6th Cir. 2017)(quotation omitted)."As long as there is some likelihood of success on the merits,these factors are to be balanced,rather than tallied."Id.
A. Likelihood ofSuccess Plaintiffs have established a likelihood of success on the merits. The record supports a determination that strict scrutiny applies to the Free Exercise claim. Supreme Court cases "establish the general principle that a law that is neutral and of general applicability need not be justified by a compelling interest even ifthe law has the incidental effect ofburdening a particular religious practice." Church ofthe Lukumi Babalu Aye,Inc. v. City ofHialeah,508 U.S. 520,531 (1993)(citing Employment Div., Dept. ofHuman Resources ofOregon v. Smith, 494 U.S. 872 (1990)). But this general rule "comes with an exception. If the law appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions or worse is a veiled cover for targeting a beliefor a faith-based practice,the law satisfies the First Amendment only if
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it advance[s]interests ofthe highest order and [is] narrowly tailored in pursuit ofthose interests.'" Ward v. Polite, 667 F.3d 727, 738 (quoting Lukumi, 508 U.S. at 546). Evidence to consider in determining whether a law or regulation is neutral and of general applicability include, among others, "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members ofthe decisionmaking body."Lukumi, 508 U.S. at 540. The exception applies here because the historical background, specific series of events,and statements ofDefendant Nessel all point toward religious targeting.
The history of this case, the Dumont litigation, the Michigan Legislature's enactment of 2015 PA53, the 2018 campaign for Michigan Attorney General and General Nessel's statements create a strong inference that the State's real target is the religious beliefs and confessions of St. Vincent, and not discriminatory conduct. St. Vincent has never prevented a same-sex couple from fostering or adopting a child. St. Vincent has actually placed children through the MARE system with same-sex adoptive parents. And St. Vincent provides parenting support groups at which same-sex parents are welcome and, in fact, attend. This is non-discriminatory conduct consistent with everything the State says it is trying to promote.
The State is willing to prevent St. Vincent from doing all this in the future simply because St. Vincent adheres to its sincerely held religious belief that marriage is an institution created by God to join a single man to a single woman. Because of that religious belief, St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application. St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the State-mandated orthodoxy, even though the State is not compensating
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Case 4:19-cv-13341-SDD-RSW ECF No. 33-1 filed 02/19/20 PageID.546 Page 22 of 33 case 1:19-CV-UL/Zob-HJJ-1-)Jti EUI— No. b9 thea U9/Zb/19 Pagelu2518 Page ¿a. of 32
them for the review services anyway. To avoid the conflict, St. Vincent refers any such applicants and declines the referral, as the contract language permits." The State legislature protected this choice by enacting the 2015 statute. Consistent with the contract and the 2015 law,St. Vincent had a longstanding practice of referring to other agencies same-sex and unmarried couples seeking assistance with the certification process. Once the State certifies these couples based on home visits by other agencies, St. Vincent will place children with them, or with any other parents certified by the State, on a non-discriminatory basis. Until January 2019, the State accepted and defended this practice in the Dumont litigation as complying fully with the 2015 statute and other applicable law.
Defendant Nessel made St. Vincent's belief and practice a campaign issue by calling it hate. She made the 2015 statute a campaign issue by contending thatthe only purpose ofthe statute is discriminatory animus. After Defendant Nessel took office, the State pivoted 180 degrees, reversing its position in the Dumont litigation. The State also threatened to terminate its contracts with St. Vincent. The Summary Statement's conclusion — that if an agency accepts even one MDHHS child referral for case management or adoption services, the agency forfeits completely the right to refer new parental applicants to other agencies based on its sincerely held religious beliefs — is at odds with the language of the contracts, with the 2015 law, and with established State practice. Moreover, it actually undermines the State's stated goals of preventing discriminatory conduct and maximizing available placements for children. This further supports a
11 The contractual language focuses on referrals of the children themselves for foster or adoptive services, not the home visits for new parental applicants. That is natural enough because St. Vincent is paid under the contracts for services provided to the children, not home visits for new parental applicants. Because the contract gives a CPA "sole discretion" to accept or decline referrals ofchildren — whether for religious or any other reason — then afortiori, the parties to the contracts contemplate unfettered discretion when it comes to referrals involving new parental applicants. The record fully supports this established practice.(See footnote 2,supra.)
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finding ofpretext for religious targeting. Strict scrutiny applies to the State's position and dictates a likelihood ofsuccess on the merits.
The State's position is not likely to survive strict scrutiny on this record. There are two potentially compelling state interests at stake, neither of which supports a State orthodoxy test. The first compelling interest the Court sees is preventing discriminatory conduct in services for which the State pays. Here,the State pays CPAs based on the children they place. And St. Vincent places its children with any certified parent — unmarried couples,same-sex couples,or otherwise. This is precisely the non-discriminatory conduct the State desires. But despite that, the State now wants to cancel St. Vincent's contract if St. Vincent uses its religious beliefs when it comes to referring new parental applicants. That strongly suggests the State's real goal is not to promote non-discriminatory child placements,but to stamp out St. Vincent's religious beliefand replace it with the State's own. The State's new position would make the stated "sole discretion" of the private agency to decline a referral illusory. It would also flout the letter and stated intention ofthe Michigan Legislature in 2015 PA53.It would disrupt a carefully balanced and established practice that ensures non-discrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage. It would replace this with a State-orthodoxy test that prevents Catholic believers from participating.
A second potentially compelling State interest is making available as many properly certified homes for the placement of foster and adopted children as possible. But the State's proposed action here actually undermines that goal. There is nothing in this record that supports a finding that the power of CPAs to decline referrals limits the pool of applicants. To the contrary, any CPA referring an applicant to a different CPA for any reason must provide information on other agencies. Nothing in the referral practice prevents anyone from seeking assistance with the
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application process. Instead, it facilitates certification. The record here reflects that St. Vincent affirmatively refers same-sex and unmarried couples seeking that assistance to other agencies available to provide it. And when the applicant is certified, nothing stands in the way ofplacement ofchildren in certified households ofsame-sex and unmarried couples. To the contrary,the record reflects that St. Vincent through the MARE system actually places children with same-sex couples certified as foster or adoptive parents. Paradoxically, the State's course of action here would constrict the supply of CPAs and undermine the State's intent of getting certified placements for kids. Again,this strongly suggests that something else — namely,religious targeting — is the State's real purpose.
The recent decision from the Third Circuit in Fulton v. City ofPhiladelphia,922 F.3d 140 (2019), does not require a different conclusion. Fulton differs in key respects factually and analytically. In Fulton, the City of Philadelphia declined to renew a contract with a faith-based child placing agency after becoming aware that the agency declined to certify same-sex or unmarried couples as foster parents based on religious objections. Fulton, 922 F.3d, 147-48. The city argued that the agency's practice violated a provision in the contract incorporating the city's Fair Practices Ordinance, which prohibits sexual orientation discrimination in public accommodation.Id. at 147. But in Fulton,the challenged practice was an actual refusal to certify, not a referral to some other agency for an impartial evaluation. The City acted as soon as it became aware of the agency's practice. There was no sudden change in the City's position after new officials who had expressed anti-religious viewstook office.Nor was there any duly enacted public policy ofthe State or municipality that aimed to protectthe agency's choice to the maximum extent provided by law.I2 Moreover,in Fulton, unlike here, there was no record ofthe agency involved
12 The Pennsylvania Religious Freedom Act, 70 Pa. Stat. Ann. § 2401 et seq. is a general religious freedom law modeled on RFRA that does not focus specifically on child placing agencies as the Michigan 2015 statute does.
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actually placing children on a non-discriminatory basis with same-sex parents certified by others. Nor was there any record in Fulton of the agency facilitating certification with referrals to other agencies.
The Fulton court found no evidence that the city "was motivated by ill will toward a specific religious group or otherwise impermissibly targeted religious conduct."Fulton,922 F.3d at 153-54. Accordingly, the more deferential analytical framework of Employment Division v. Smith,494 U.S. 872(1990),and not strict scrutiny, applied.Id. at 152-54. Similarly,the court in New Hope Family Services,Inc. v. Poole,387 F. Supp. 3d 194(N.D.N.Y.2019),explicitly found the record devoid of evidence of religious animus or targeting and applied the more deferential scrutiny ofSmith. New Hope Family Services,387 F. Supp. 3d 213-216. Unlike Fulton and New Hope,the record before the Court in this case supports an inference ofreligious targeting, which means that strict scrutiny applies. The degree of scrutiny drives the analysis in a Free Exercise case. And the application of strict scrutiny in this case makes it likely that Plaintiffs will succeed on the merits of their Free Exercise Claim.13
The federal government has not made any direct statements or threats to St. Vincent about funding or otherwise. But as the case is currently positioned, the Federal Defendants are inextricably in the mix, at least for preliminary injunction purposes. RFRA precludes the federal government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the federal government "demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and(2)is the least restrictive means offurthering that compelling government interest."
13 The Court's ruling on the probability of success on the Free Exercise claim makes it unnecessary to evaluate separately the probability ofsuccess ofthe compelled speech,retaliation,and equal protection theories. Suffice to say the Court is satisfied that St. Vincent has stated plausible claims sufficient to survive Rule 12(b)(6)review.
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42 U.S.C. §§ 2000bb-1(a), (b). The RFRA test is easier for a plaintiff to satisfy than the constitutional test already applied.
The State argues that it must proceed against St. Vincent here to prevent the federal governmentfrom cutting offall funds it provides to the State for the purpose offunding foster care and adoption programs. According to the State, $171 million in federal funding to the State is at risk, and the federal government's obligation to enforce a federal regulation "is not optional." (State Defendants' Resp. to Federal Defendants' Mot. to Dismiss, ECF No. 53, PageID.1875.) Indeed, according to the State,"there is a credible threat that the Federal Defendants will enforce the regulation against MDHHS...."(Id.)(emphasis in original).
In response, the federal government has not promised to keep funds in place, and has not said that the State is misinterpreting federal law. Moreover, the Federal Defendants themselves have affirmatively noted that the government"can almost always change its position on whether to enforce a law or regulation,"(ECF No.61,PageID.2159), which is exactly what St. Vincent is trying to prevent, especially after experiencing the State's change of position. The Federal Defendants point out that States can seek an exemption from the federal regulation at issue, but that is hardly reassuring to St. Vincent, because the State Defendants currently have no interest in that for reasons already addressed. Moreover, as the case demonstrates, government officials can change their minds, re-interpret laws already on the books, and disrupt established practices. Because the Federal Defendants have refused to refute the State's own assertion that there is a credible threat the federal regulation will be triggered against the State if St. Vincent's position prevails, St. Vincent has established a need to enjoin the Federal Defendants from applying the federal regulation to punish the State generally, or St. Vincent in particular, for permitting the continuation of St. Vincent's religiously-based referral practice during the pendency ofthis case.
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B. Balance ofHarms There is a strong likelihood of irreparable harm to St. Vincent absent the preliminary injunction it requests. The loss ofrights under the First Amendment is inherently harmful."The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief." Newsom v. Norris, 888 F.3d 371, 378 (6th Cir. 1989) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion of Brennan, J.)). St. Vincent has shown that it is likely to prevail on its constitutional and RFRA claims. Concomitantly,it has shown a likelihood ofirreparable harm that warrants injunctive relief. In addition to the harm inherent in the loss ofconstitutional rights, St. Vincent risks losing its license to provide foster and adoption services. Without a license, St. Vincent will not be able to provide foster and adoption services lawfully. It would have to cease providing those services. This would harm not only Plaintiffs, but also third parties. Shuttering St. Vincent would create significant disruption for the children in its care, who already face an unpredictable home life and benefit from stability. It would also hurt the foster and adoptive parents who rely on St. Vincent for support and would have to find new resources.And it would harm the employees ofSt. Vincent who work in the foster and adoption area, who would lose their employment. The risk of haiiii to the State, in contrast, is not substantial, especially with concomitant relief against the Federal Defendants. A preliminary injunction would maintain the religious accommodation the State supported for years and defended in the Dumontlitigation until the 2018 election. Nor is there a risk of harm to prospective adoptive couples, same-sex or otherwise. There are multiple pathways to obtaining certification apart from St. Vincent's assistance. Allowing St. Vincent to continue its practice does not prevent any licensed same-sex couple from becoming
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certified, fostering, or adopting. Nor does it prevent any unmarried or same-sex couple from completing the certification process in the first place with an agency with different religious beliefs or no such beliefs at all.
The balance of harms favors preliminary injunctive relief to preserve the status quo. C. Public Interest The public interest factors also favor a preliminary injunction to maintain the status quo. Preventing constitutional violations is always in the public interest. G & V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994). Ensuring that as many properly certified homes are available for prospective foster and adoptive children as possible, and that children in the system are placed quickly, is also in the public interest. Allowing St. Vincent to continue its work furthers that interest. The decision ofthe legislature to enact 2015 PA53 itself reflects a public interest in protecting the ability offaith-based CPAs such as St. Vincent to place children in certified foster and adoptive homes,whether same-sex households or otherwise, while maintaining the ability to exercise their religious beliefs freely by facilitating referrals to other agencies when religious beliefs are implicated. The public interest factors support a preliminary injunction. For these reasons, all the preliminary injunction factors weigh in favor of granting the preliminary injunction Plaintiffs seek. 2. Motions to Dismiss A. Standing The State challenges the individual Plaintiffs' standing, and the Federal Defendants challenge the standing ofall the Plaintiffs', as well as the ripeness ofPlaintiffs' claims."Standing under Article III ofthe Constitution requires that an injury be concrete, particularized, and actual
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case 1:19-CV-UUZtib-HJJ-PJU ECI- NO.(Sy Titea U9/Lb/19 Page11.).Z5Zb Page Ai 01:3Z
or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). In pre-enforcement First Amendment challenges, the doctrines of Article III standing and ripeness, which "originate from the same Article III limitationM" merge and are analyzed together. Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016)(quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 n.5 (2014)).In this context,"the line between Article III standing and ripeness ... has evaporated."Id.
The Court finds that Plaintiff St. Vincent has standing to sue both the State and Federal Defendants. The religious injury St. Vincent alleges is fairly traceable to the State and the Federal Defendants.The State's change ofposition is the direct and mostimmediate source ofthe religious targeting injury alleged. But as already discussed, the federal government is inextricably part of it at this stage based on its refusal to take the $171 million federal funding issue off the table. The State premises its position toward St. Vincent on concern that the State will lose all federal funding for foster and adoption services if the federal government enforces § 45 C.F.R. 75.300(c). The federal government has not denied that risk. An injunction against enforcing the federal regulation during the pendency of this lawsuit would redress the harm St. Vincent alleges, and protect the State along the way.14 St. Vincent has standing as to all Defendants.
In contrast, the Court finds that the allegations ofthe Bucks and Ms. Fiore do not satisfy the elements ofArticle III standing. They have no contracts with the State,and the State has made no threats against them based on their religious profession or practice, or otherwise. The alleged
14 To the extent the Federal Defendants argue that the Plaintiffs fail to state a claim,the argument fails. Plaintiffs have stated a plausible RFRA claim. Plaintiffs allege that the Federal Defendants are requiring Michigan to comply with § 45 C.F.R. 75.300(c); that the regulation is unlawful; and that the regulation forces St. Vincent to violate its sincere religious beliefs in order to comply with the State and federal requirements. They have alleged that the federal government has imposed a substantial burden on their sincere religious exercise,and that the burden is neitherjustified by a compelling state interest nor the least restrictive means of achieving the interest. Dismissal under Rule 12(b)(6) is not appropriate.
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Case mea 1:19-CV-UUZob-KJJ-1-'..113 LCF- NO. b9

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harm to the individual Plaintiffs derives entirely from the alleged harm that will befall St. Vincent. The three individual Plaintiffs have benefitted from St. Vincent, and have engaged in their own adoptive and foster ministries through St. Vincent.Butnone ofthese individuals indicates a present intention to foster or adopt through St. Vincent. Nor do they make any convincing showing that they will be unable to continue their engagement on foster and adoptive matters with other agencies, even if St. Vincent were to lose its contracts — something that could happen for many reasons wholly unrelated to this case. Indeed, St. Vincent itself has argued and demonstrated that many other agencies are available for the new potential applicants that it chooses to refer. By the same token, many other outlets — including other faith-based outlets — would remain available to the individual Plaintiffs. Moreover,the alignment ofclaimed injury and the alleged wrong is also skewed for the individual Plaintiffs. The CPA practice at issue is referring new applicants for religious reasons, and the challenged State action is religious targeting aimed at stopping it. But the individual Plaintiffs are not involved in the referrals and are not being targeted for direct action by the State. Not every beneficiary, supporter, or prospective client of St. Vincent has standing to challenge adverse action the State has focused on St. Vincent itself. The alleged harm to the individual Plaintiffs is too attenuated to support standing.15
B. Defendant Nessel The State Defendants seek dismissal ofDefendant Nesselfrom the case. They contend that she is simply the State's chief legal counsel, is not responsible for Michigan's change in policy, and does not belong in the case. The record undercuts the claim. Based on the record to date, Defendant Nessel is at the very heart of the case. She referred to proponents of the 2015 law as

15 The individual Plaintiffs are welcome to proceed as amici curiae.
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"hate-mongers" and said the only purpose of the 2015 law was "discriminatory animus." She described the 2015 law as "indefensible" during her campaign. These statements raise a strong inference of a hostility toward a religious viewpoint. Based on the present record, she was also a pivotal player in the State's total reversal ofposition in theDumontlitigation.It washer assessment ofrisk that led the State to movefrom defending St. Vincent's position to abandoning it in the first month of her term — and this despite the 2015 law, the language of the contracts, and wellestablished practice. All of this supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was Defendant Nessel who targeted it. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719, 1729-31 (2018)(detailing disparaging statements of government decision-makers regarding particular religious beliefs and emphasizing the "State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint"). On this record, dismissal of Defendant Nessel from the case is not warranted.
C. Res Judicata The State Defendants contend that dismissal of the case is proper based on res judicata arising out of the Dumont litigation. Contrary to the State's arguments, res judicata provides no basis for dismissal here. Res judicata requires: "(1) a final decision on the merits by a court of competentjurisdiction;(2)a subsequent action between the same parties or their privies;(3)an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and(4)an identity ofthe causes of action."Kane v. Magna Mixer Co., 71 F.3d 555,560 (6th Cir. 1995). Potential application falters on the very first element: there was never a final decision on the merits in the Dumont litigation. The case was resolved by private settlement between the State and the plaintiffs in the case. The Court did not approve the settlement and was
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never asked to do so. Nor did the Court in Dumont make any final decision on the merits. There is simply nojudgment in Dumont to which resjudicata can attach.
Moreover,it is importantto note that St. Vincent and the State were originally on the same side in Dumont, defending St. Vincent's religiously-based referral practice. When St. Vincent intervened, it did so as a defendant, aligning with the State. In such a posture, St. Vincent had no obligation to assert any claims against the State, let alone the ones they are now bringing. They were co-parties, and under Rule 13(g), crossclaims are entirely permissive. FED.R.Cw.P. 13(g)
(.A. pleading may state as a crossclaim any claim by one party against a coparty....")(emphasis
added); United States Confederate Acres Sanitary Sewage and Drainage System, Inc., 935 F.2d 796, 799 (6th Cir. 1991). Nor did St. Vincent have any claims it could have asserted against the State anyway because at the time, the State agreed with St. Vincent.
The State Defendants also suggest that the Settlement Agreement bars Plaintiffs' claims. This is an entirely specious claim. Plaintiffs were not parties to the Settlement Agreement. Moreover,even though the State Defendants call the Settlement Agreement a"consent decree," it was no such thing. It was a private contract between the State and the plaintiffs in the case. No one asked St. Vincent what it thought ofthe settlement. And no one asked the Court what it thought either. The Court simply entered a routine stipulated dismissal and retained jurisdiction over the enforcement ofthe Settlement Agreement between the parties to that agreement. There is no basis to conclude that the Settlement Agreementis a consent decree,or that it binds any non-party to the Settlement Agreement,including St. Vincent.
CONCLUSION The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done thatfaithfiffly,regardless ofwhether the certified parents
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were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.
What St. Vincent has not done and will not do is give up its traditional Catholic beliefthat marriage as instituted by God is for one man and one woman.Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple,and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015,the Michigan legislature enacted legislation designed to protect that choice,and until January of2019,the State defended the right ofthe State and St. Vincent to make that choice.
That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent's to be the productofhate. She stated that the 2015 law seeking to protect St. Vincent's practice was indefensible and had discriminatory animus as its sole purpose. After her election, she reversed course in the Dumont litigation; re-interpreted the 2015 law; and put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious beliefis what calls for strict scrutiny in this case and supports entry ofa preliminary injunction preserving the status quo while the case is fully litigated.

Dated: September 26,2019

/s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

32

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.558 Page 1 of 9
Exhibit 2

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.559 Page 2 of 9
Case 2:1(-CV-14148-ELC-DF'1143JQ EUF NO. 235 thea UL/U1/i9 Pageiu.83(z Hage 1 or
8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEAGUE OF WOMEN VOTERS OF MICHIGAN,et al.,
Plaintiffs,
v.
JOCELYN BENSON,in her official capacity as Michigan Secretary of State, et al.,
Defendants.

) ) ) )
) ) No.2:17-cv-14148
) ) ) ) )
) )

ORDER DENYING JOINT MOTION TO APPROVE CONSENT DECREE (ECF No.211)

Before the Court is the Joint Motion to Approve Consent Decree("Motion")

filed by Plaintiffs and Defendant Secretary of State. Jocelyn Benson (ECF No.

211). For the reasons stated below,the CourtDENIES the Motion.

The terms of the Proposed Consent Decree are as follows. (See Proposed

Consent Decree,ECF No.211-1). Eleven Michigan House Districts(the "Enjoined

Districts") would be declared unconstitutional for violating the First and

Fourteenth Amendments. Plaintiffs would dismiss their challenges to the Michigan

Senate Districts, the U.S. Congressional Districts, and the other Michigan House

Districts at issue in this litigation. The Enjoined Districts would not be used in

1

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.560 Page 3 of 9
case zat-CV-14148-ELC-UPI-143Jy EU- NO.235 thea uzimau Pagelu.8:3/:3 Page z of
8
future elections. The Michigan Legislature would be given the opportunity to submit remedial maps for the Enjoined Districts, subject to approval ofthis Court. The parties, and any interested persons, would be permitted to submit briefs advising the Court (1) whether the proposed remedial districts comply with the First and Fourteenth Amendments and/or (2) "whether there exist remedial alternative district(s)the Court should adopt ifthe Legislature's proposed remedial districts were determined by the Court to be unconstitutional or if the Legislature were to fail to submit redrawn districts" by the deadline to do so. (Id. at PageID #7895.) Plaintiffs and Benson ask this Court to stay trial and hold a Fairness Hearing regarding the Proposed Consent Decree.
The Michigan Republican Congressional Delegation ("Congressional Intervenors") and two individual Republican State Representatives, Lee Chatfield and Adam Miller ("Michigan House Intervenors"), oppose the Motion.(See ECF No. 231.) They assert, among other arguments, that Benson lacks the authority to enter into the Proposed Consent Decree absent the Michigan Legislature's approval.
Plaintiffs and Benson rely on the Supreme Court's decision in Lawyer v. Dep't ofJustice, 521 U.S. 567(1997) to support their argument that Benson has the authority to enter into the Proposed Consent Decree. In Lawyer, six residents challenged their legislative district under the Equal Protection Clause, naming the
2

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ease 2:1/-CV-14146-ELU-DPH-UJQ EUI- NO. 2:35 meg UL/U1/"19 Pageiu.w /4 Page :3 OT
8
State ofFlorida,the Florida Attorney General,and the United States Department of Justice as defendants. Id. at 569-71. After a settlement conference, the parties proposed a consent decree. The consent decree did not admit that the challenged district was unconstitutional; rather, it acknowledged that the plaintiffs' claim was supported by reasonable factual and legal bases. Id. at 572. The proposed consent decree replaced the contested district with a remedial district that complied with constitutional requirements. Id. Prior to entering the proposed consent decree, the district court "sought and received specific assurances from lawyers for the President of the [Florida] Senate and the Speaker of the [Florida] House that they were authorized to represent their respective government bodies in the litigation and enter into the settlement proposed."Id. at 573. The district court approved the consent decree over the objection of an individual plaintiff who argued that the district court could not enact a remedial district plan without first explicitly finding that the current district was unconstitutional.Id. at 579.
The Supreme Court affithred the district court's decision to enter the consent decree. The Supreme Court emphasized the importance ofthe fact that the Florida Senate and Florida House agreed to the terms ofthe consent decree,explaining that while "[a] State should be given the opportunity to make its own redistricting decisions so long as that is practically possible and the State chooses to take the opportunity[,]" the fact that counsel for "each legislative chamber" agreed to the
3

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ease L:1(-CV-1414b-LLU-U1-11-1-Wy EC:I- NO. 235 mea U2/U1/19 Pagetu.b3/5 Page 4 OT
8
settlement "confirmed both the continuing refusal of the legislature to address the issue in formal session and the authority of the attorney general to propose the settlement plan on the State's behalf." Id. at 576-78. The Supreme Court held that the district court properly entered the consent decree over the objections of the plaintiff because the settlement gave the objecting plaintiff the very relief he had originally requested—it invalidated the challenged district and replaced it with a map that complied with the Constitution. Id. at 579. The Supreme Court explained that "[t]o afford [the objecting plaintiff] a right to the formality of a decree in addition to the substance of the relief sought would be to allow a sore winner to obscure the point ofthe suit."Id.
Plaintiffs and Benson argue that Lawyer empowers the Court to enter the Proposed Consent Decree that invalidates the Enjoined Districts over the Intervenors' objections. But Lawyer does not stand for such a broad proposition. In fact, Lawyer's holding is much narrower than Plaintiffs and Benson contend. In Lawyer, the Florida Senate and the Florida House explicitly consented to the relief contained in the consent decree. The Supreme Court emphasized the vital importance ofthe Florida legislature's support ofthe consent decree in its decision; it considered the legislature's approval of the consent decree as an acknowledgement by the legislature that it wanted the federal court, not the legislature, to remedy the challenged district. Id. at 577-78. But in the instant case,
4

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.563 Page 6 of 9
Case Za t-CV-14148-ELU-UP1-14..i.A.2 EUF NO. L.35 Tiiea UL/U1/i9 Pageau.n Ri Page b OT
8
the Intervenors oppose the Proposed Consent Decree, as does the Michigan Senate, which filed a motion to intervene in this case.' Accordingly,Lawyer is inapposite.
Lawyer does not apply to the instant case for another reason. The objecting party in Lawyer was a "sore winner," a plaintiff who, unsatisfied with the court's simply invalidating the challenged district and replacing it with a remedial one, also sought an explicit judicial finding that the original district violated the Constitution. Id. But the Intervenors in the instant case are not "sore winners"— they oppose the Proposed Consent Decree because they believe it undermines their interests in maintaining the current maps and their legal theory that the existing maps satisfy all constitutional requirements. Because the Intervenors would not receive"the substance ofthe reliefsought"ifthe Court were to enter the Proposed Consent Decree,Lawyer does not apply.
Plaintiffs' and Benson's argument is further undermined by Fouts v. Harris, 88 F. Supp. 2d 1354(S.D. Fla. 1999),aff'd sub nom. Chandler v. Harris,529 U.S. 1084 (2000). In Harris, a threejudge panel denied plaintiffs' motion to enter a consent decree that would have invalidated a United States Congressional district because"numerous dissenting parties[,]" including the governor,the speaker ofthe house, and the secretary of state objected to the proposed agreement. Id. at 1353. The Harris court rejected the plaintiffs' argument that Lawyer allowed the court to
1 The Court addresses the Michigan Senate's motion to intervene in a separate order.
5

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uase t-CV-14148-ELC-UPI-1-UJQ EU- NO. Zjb two UL/U1/i9 Pagelu.w Page i OT
8
enter the proposed settlement agreement over the defendants' objections, and interpreted Lawyer as standing for the narrow proposition that "parties can agree to settle and dispose of a dissenting party's claim when, through the settlement, the dissenting party achieves the essential goals of his suit." Id. (citing Lawyer, 521 U.S. at 579-80). The court explained that Lawyer holds that "a 'sore winner' looking only for the additional satisfaction of a judgment will not be permitted to block a settlement." Id. (quoting Lawyer, 521 U.S. at 579-80). The Harris court further stated that, lilmportantly, in describing the propriety of overriding the dissenting party's desire not to settle, the Court was careful to confirm that it would be 'forbidden' to settle a redistricting claim over the objections of a party who was not obtaining his requested relief"Id.(quoting Lawyer,521 U.S. at 579). Accordingly, Harris supports the Intervenors' argument that the Court cannot enter the Proposed Consent Decree. Like the dissenting parties in Harris, whose objections precluded the court from entering the consent decree proposed in that case,the Intervenors would not obtain their requested reliefifthe Court entered the Proposed Consent Decree offered by Plaintiffs and Benson.
Finally, contrary to her contention, Benson lacks the authority to enter into the Proposed Consent Decree on behalf of the State of Michigan. Plaintiffs and Benson rely extensively on In re Certified Questionfrom Us. Dist. Courtfor E. Dist. ofMichigan, 465 Mich. 537(2002), where the Michigan Supreme Court held

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.565 Page 8 of 9
case 2:1.t-CV-14148-ELU-UPH-UJy Et.;1- NO. 2;35 mea U1/U1/19 Pagelu.t3:3/8 Page r OT
8

that "the Attorney General has broad authority to sue and settle with regard to

matters of state interest, including the power to settle such litigation with binding

effect on Michigan's political subdivisions." Id. at 547. But the Proposed Consent

Decree would not have a binding effect on a political subdivision—it would

invalidate maps approved and enacted by the Michigan Legislature. And the

Michigan Constitution gives the Michigan Legislature, not any political

subdivision, authority to "enact laws to regulate the time, place and manner of all .

.. elections." MI CONST Art. 2, § 4. Accordingly, Benson lacks the authority—

absent the express consent of the Michigan Legislature, which she lacks—to enter

into the Proposed Consent Decree.

Therefore, the Joint Motion to Approve Consent Decree (ECF No. 211) is

DENIED.Because the Court finds that Benson lacks the authority to enter into the

Proposed Consent Decree under these circumstances, the Court will not hold a

Fairness Hearing to further consider the merits ofthe Proposed Consent Decree.

IT IS SO ORDERED.

Dated: February 1, 2019

/s/ Eric L. Clay Signed for and on behalfofthe panel:

HONORABLE ERIC L.CLAY United States Circuit Judge

HONORABLE DENISE PAGE HOOD United States District Judge

7

Case 4:19-cv-13341-SDD-RSW ECF No. 33-2 filed 02/19/20 PageID.566 Page 9 of 9 uase Z:it-CV-14148-ELC-UPH-UJQ ELI- NO. 2:35 mea UZ/U1/19 Pageiu.8:3i9 Page 8 OT
8 HONORABLE GORDON J. QUIST United States District Judge
8

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.697 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., and THE DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

Plaintiffs,

Case No. 3:19-CV-13341

v.
DANA NESSEL, in her official capacity as the Attorney General of the State of Michigan,

HON. STEPHANIE DAWKINS DAVIS MAGISTRATE R. STEVEN WHALEN

Defendant. /

THE MICHIGAN SENATE AND MICHIGAN HOUSE OF REPRESENTATIVES’ MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24, the Michigan Senate and

Michigan House of Representatives (“the Legislature”) respectfully request that they

be permitted to intervene as Defendants in this matter.

In support, the Legislature relies on the attached brief. The Legislature also

submits as Exhibit 1 a proposed Answer to Plaintiffs’ Amended Complaint for

Declaratory and Injunctive Relief, in accordance with Rule 24(c).

In compliance with Local Rule 7.1(a), counsel for the Legislature conferred

by email with Plaintiffs’ and Defendant’s counsel. All oppose this motion.

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.698 Page 2 of 23

Dated: February 27, 2020

Respectfully submitted,
BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com meyers@bsplaw.com steinberger@basplaw.com

2

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.699 Page 3 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., and THE DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

Plaintiffs,

Case No. 3:19-CV-13341

v.
DANA NESSEL, in her official capacity as the Attorney General of the State of Michigan,

HON. STEPHANIE DAWKINS DAVIS MAGISTRATE R. STEVEN WHALEN

Defendant. /

BRIEF IN SUPPORT OF THE MICHIGAN SENATE AND MICHIGAN HOUSE OF REPRESENTATIVES’ MOTION TO INTERVENE

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.700 Page 4 of 23
STATEMENT OF ISSUE PRESENTED 1. The Michigan Legislature has a compelling interest in both the defense of duly
enacted statutes and preserving the integrity of Michigan’s elections through the same, including the prohibitions on paid voter transportation and absentee ballot collection challenged here. This case is brought by the fundraising arm of the nation’s largest Democratic Party Super PAC, as well as two other Democratic-Party-affiliated organizations against Michigan Attorney General Dana Nessel, another Democrat. Nessel has made public statements expressing hostility to similar laws, casting doubt on her willingness to defend the laws at issue in this case and other Michigan laws with which she does not agree. Under these circumstances, should the Michigan Legislature be granted intervention as a matter of right under Rule 24(a)(2), or alternatively permissive intervention under Rule 24(b), to ensure vigorous representation in this case?
The Legislature answers “Yes.” Plaintiffs answer “No.” Defendant answers “No.” This Court should answer “Yes.”
ii

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.701 Page 5 of 23
CONTROLLING OR MOST APPROPRIATE AUTHORITY Fed. R. Civ. P. 24 Michigan Constitution, Art. II, § 4(2) Blount-Hill v. Zelman, 636 F.3d 278 (6th Cir. 2011) Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) INS v. Chadha, 462 U.S. 919 (1983) Mich State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v.
Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006)
iii

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.702 Page 6 of 23
INTRODUCTION The Michigan Legislature seeks to intervene in this lawsuit to protect Michigan’s election-law infrastructure from dismantling by a partisan, out-of-state Super PAC. One of the nation’s largest Democratic-Party-affiliated organizations filed this lawsuit (and two related lawsuits filed separately in a transparent display of forum- and judge-shopping) against the Democratic Attorney General, who has made public statements suggesting a lack of genuine opposition to Plaintiffs’ positions. That, and the executive branch’s growing track record of coordinating with like-minded plaintiffs to settle litigation for partisan gain, contrary to law and the State’s interests, casts justifiable doubt on the vigor with which these claims will be defended. Thus, the Michigan Legislature must intervene to restore the adversarial nature of this litigation and to protect the integrity of Michigan’s elections. On November 12, 2019, Plaintiff Priorities USA—a Washington, DC, 501(c)(4) political action committee closely affiliated with the Democratic Party— filed this lawsuit against Attorney General Dana Nessel, in her official capacity, alleging that two long-enshrined protections of Michigan’s elections (prohibitions on paid voter transportation and absentee ballot collection) are unconstitutional. (ECF No. 1). An amended complaint, filed on January 27, 2020, added Rise, Inc.,
1

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.703 Page 7 of 23
and the Detroit/Downriver Chapter of the A. Philip Randolph Institute as CoPlaintiffs. (ECF No. 17).
This matter is part of a concerted course of judge- and forum-shopping. Instead of one action, Plaintiff Priorities USA intentionally divided its allegations about Michigan’s election-law system into three different lawsuits, of which this was the second:
• On October 30, 2019, Plaintiff filed its first action in the Eastern District of Michigan, asserting that Michigan’s signature-matching requirement for absentee ballots is unconstitutional. The first-filed action, which names as the defendant Secretary of State Jocelyn Benson (represented in her official capacity by Attorney General Nessel), is pending before Judge Cleland. (Case No. 3:19-CV-13188, ECF No. 1); and
• On November 22, 2019, Plaintiff filed its third action in the Michigan Court of Claims, alleging that various registration requirements in Michigan’s election laws violate the Michigan Constitution. (Case No. 19-000191-MZ; Docket No. 1).
Plaintiffs’ decision to bring this action against the Attorney General instead of the Secretary of State, which is the typical process in lawsuits concerning election law
2

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.704 Page 8 of 23
and which Plaintiffs’ did in the other two connected lawsuits,1 is further evidence of forum- and judge-shopping, and a hollow effort to avoid proper consolidation of these interrelated actions.
On November 27, 2019, the Legislature filed a Motion to Intervene in the first-filed action before Judge Cleland, believing that procedural comity entitled that court to decide the question of intervention first. (Case No. 3:19-CV-13188, ECF No. 7). That motion is currently set for hearing on April 8, 2020. However, Plaintiffs’ strategic machinations—i.e., attempting to “expedite” the second-filed companion case while taking no similar action in the other cases—require the Legislature’s immediate intervention in all the related cases.
That the three lawsuits are a connected, concerted effort by a partisan organization to dismantle Michigan’s election laws is beyond debate. Indeed, in all three suits, Plaintiff Priorities USA relies on overlapping or even identical allegations, such as that it is challenging Michigan’s duly enacted laws because Priorities USA “will have to expend and divert additional funds . . . at the expense of its efforts in other states and its other efforts in Michigan.” (ECF No. 1, ¶ 6; Case
1 See, e.g., League of Women Voters v. Secretary of State, ---NW2d---, 2020 WL 423319 (Mich Ct App, January 27, 2020); Citizens Protecting Michigan’s Constitution v Secretary of State, 324 Mich. App. 561 (2018); Graveline v Secretary of State Jocelyn Benson, ---F Supp 3d---, 2019 WL 7049801 (E.D. Mich. December 22, 2019); Michigan State A. Philip Randolph Institute v. Secretary of State Ruth Johnson, Case No. 16-cv-11844 (E.D. Mich. 2016).
3

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.705 Page 9 of 23

No. 3:19-CV-13188, ECF No. 1, ¶ 19; Case No. 19-000191-MZ, Docket No. 1, ¶ 17). All three actions are brought by the same lead counsel, Marc E. Elias of Perkins Coie. And, if any doubt could remain, it would be dispelled by the public statements of Priorities USA’s chairman, Guy Cecil. After filing this first action, Mr. Cecil promised that it was “the first shoe to drop” in Michigan and that there were “[m]ore to come.”2 And, upon the completion of the trilogy, Mr. Cecil released a statement calling the Court of Claims action the “third and final suit in Michigan.”3
Plaintiff justifies its assault on Michigan law by reference to the purported goal of combatting disenfranchisement. In so doing, however, it unreasonably discounts the critical importance of ensuring that Michigan’s elections are free of the taint of actual or even perceived fraud. It is to fulfill its constitutional mandate of preserving the purity of those elections that the Legislature passed the statutes at issue in this and the companion cases. See 1963 Mich. Const., Art. II, § 4(2).
Yet, the Legislature’s interests are not genuinely represented in this action. Indeed, Attorney General Nessel actively campaigned, in part, on the promise that she would not defend Michigan laws that she deemed unconstitutional.4 And though

2

https://www.detroitnews.com/story/news/politics/2019/10/30/group-sues-

michigan-over-checking-absentee-voter-signatures/4097771002/

3

https://www.mlive.com/public-interest/2019/11/democratic-pac-files-third-

lawsuit-challenging-michigan-voting-laws.html

4 https://www.bridgemi.com/michigan-government/michigan-attorney-generalcandidate-dana-nessel-attacked-her-own-

4

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.706 Page 10 of 23
she has so far adopted a position adverse to Plaintiffs, this case has all the hallmarks of the types of “sue-and-settle” actions engaged in by Attorney General Nessel in her representation of Secretary Benson. (For example, in College Democrats at the University of Michigan, et al. v. Johnson (Case No. 3:18-CV-12722), Secretary Benson, represented by Attorney General Nessel, took over a case that had to that point been actively defended, and then promptly entered a settlement that required accommodations around long-standing protections on Michigan’s elections.) Furthermore, any attempted settlement of this action without the Legislature’s participation and approval would violate the Michigan Constitution, which gives the Legislature authority to enact laws to regulate the “time, place and manner of all . . . elections.” 1963 Mich. Const., Art. II, § 4(2); see also Case No. 2:17-cv-14148, ECF No. 235, Order Denying Motion to Approve Consent Decree (“[Secretary] Benson lacks the authority—absent the express consent of the Michigan Legislature, which she lacks—to enter into the Proposed Consent Decree.”) Against this backdrop, the reasons to doubt the adequacy of Attorney General Nessel’s representation are unavoidable, and the necessity for the Michigan Legislature’s intervention is apparent.
words?fbclid=IwAR2jlb4sTHzqwgV6bpwnM9r6mFOR7yq5LIOa2NQNX_XtqOA0MokjkVlQ-o
5

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.707 Page 11 of 23
Accordingly, the Legislature respectfully requests that the Court grant its Motion to Intervene because:
(1) The Legislature’s intervention is timely, with this motion filed before any scheduling order has been set; (2) The Legislature has a substantial and particular legal interest in preserving the integrity of duly enacted Michigan statutes and the integrity of Michigan’s election system; (3) The Legislature’s ability to protect its interest will be impaired if it does not intervene, particularly given the credible prospect of a rapid capitulation or similar failure to vigorously defend the merits; and (4) Attorney General Nessel does not adequately represent the Legislature’s interests because she is unlikely to provide the full-throated defense that Michigan law deserves. The Legislature attaches its proposed Answer to Plaintiffs’ Amended Complaint for Declaratory and Injunctive Relief, as required by Rule 24(c). However, if permitted to intervene, the Legislature intends to file promptly its dispositive motion under Rule 12(c). The Legislature also believes that reassignment of this case is appropriate under Local Rule 83.11(b) to promote judicial efficiency and intends to request such a reassignment if permitted to intervene.
6

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.708 Page 12 of 23
ARGUMENT The Legislature seeks to intervene in this action under Federal Rule 24(a)(2) or, alternatively, under Rule 24(b)(1). Those rules state, in relevant part: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represented that interest. (b) Permissive Intervention. (1) On timely motion, the court may permit anyone to intervene who: . . . (B) has a claim or defense that shares with the main action a common question of law or fact. “Rule 24 traditionally receives liberal construction in favor of applicants for intervention.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). Because the Legislature’s participation is necessary for a full and fair adjudication of this case, the Court should allow the Legislature to intervene as Defendant. A. The Legislature Should be Granted Intervention as a Matter of Right. The Sixth Circuit recognizes an “expansive notion of the interest sufficient to invoke intervention of right.” Mich State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). To be entitled to intervene as a matter of right, an applicant must show: (1) the application was timely filed; (2) the applicant possesses a substantial legal interest in the case; (3) the applicant’s ability to protect its interest will be impaired without
7

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intervention; and (4) the existing parties will not adequately represent the applicant’s interest. Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011); Grutter v. Bollinger, 188 F.3d 394, 397–98 (6th Cir. 1999). These rules must be “construed broadly in favor of potential intervenors.” Michigan State AFL-CIO, 103 F.3d at 1246. 1. The Legislature’s Motion to Intervene is timely filed. The five factors set forth by the Sixth Circuit in weighing the timeliness of a motion to intervene entirely favor the Legislature. Those factors are: (1) the stage of the proceedings; (2) the purpose of the intervention; (3) the length of time between when the proposed intervenor knew (or should
have known) about his interest and the motion; (4) the prejudice to the original parties by any delay; and (5) any unusual circumstances militating in favor of or against intervention. Jansen v. Cincinnati, 904 F.2d 336 (6th Cir. 1990). These proceedings are in their infancy. Indeed, no scheduling conference (much less schedule) has been set and no development beyond initial motion practice has taken place. Therefore, the Legislature is positioned to participate fully throughout the duration of this case. Moreover, as discussed throughout this motion, the Legislature has a compelling purpose in ensuring vigorous litigation of the
8

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.710 Page 14 of 23
disputed issues, in the face of strong reasons to doubt the true adversity of the original parties. And the Legislature has not delayed, electing to file promptly rather than adopting a wait-and-see approach. Because the Legislature is requesting permission to participate from the inception of this matter, there is no possible delay or prejudice. Thus, no party can seriously contest this motion’s timeliness.
2. The Legislature has a sufficient interest that may be impaired by the disposition of this case.
“To satisfy [the impairment] element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” Michigan State AFL-CIO, 103 F.3d at 1247. The Legislature need not demonstrate “that impairment will inevitably ensue from an unfavorable disposition; the would-be intervenors need only show that the disposition may impair or impede their ability to protect their interest.” Purnell v. Akron, 925 F.2d 941, 948 (6th Cir. 1991). And the presumption is in favor of intervention—“close cases should be resolved in favor of recognizing an interest under Rule 24(a).” Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999).
Cases recognizing a legislative body’s interest in defending the constitutionality of statutes are legion. See Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006) (recognizing Ohio Legislature’s right to intervene and defend Voter ID statute when interest “potentially” diverged from defendant Secretary of State); Adolph Coors Co.
9

Case 4:19-cv-13341-SDD-RSW ECF No. 39 filed 02/27/20 PageID.711 Page 15 of 23
v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) (recognizing House of Representatives’ ability to intervene to defend alcohol-labeling statutes); In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987) (recognizing Congress’s right to intervene to defend Bankruptcy Act); Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir. 1986) (“There is no dispute that the Congressional intervenors were proper parties for the purpose of supporting the constitutionality of the CICA stay provision.”); Windsor v. United States, 797 F. Supp. 2d 320, 324 (S.D.N.Y. 2011) (“[C]ourts have permitted Congress to intervene as a full party in numerous cases where the Executive Branch declines to enforce a statute that is alleged to be unconstitutional.”)
The Legislature here is situated similarly to the legislative bodies granted intervention as a matter of right in the caselaw above. It seeks to intervene to defend the constitutionality of duly enacted Michigan statutes, in the face of circumstances in which the representation of the defendant charged with enforcement has been called into doubt by prior actions and public statements. Indeed, there are sufficient hallmarks of a conflict of interest in this and the companion cases—actions brought by partisan organizations against members of the same political party, aimed squarely at advancing stated policy goals of that party—to erode public confidence in the outcome unless genuine adverse representation is assured.
The nature of the statutes under attack further demonstrates the Legislature’s
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interest in intervention. The Legislature is constitutionally obligated to “enact laws . . . to preserve the purity of elections.” 1963 Mich. Const., Art. II, § 4(2). The Legislature has fulfilled that mandate and now seeks to defend the integrity of the very voting laws—in this case, the prohibitions on paid voter transportation and absentee ballot collection—under which its members will be elected. Undoubtedly, the members of the Legislature, who all must be elected, have an interest in preserving and protecting the integrity of the elected body. See Powell v. McCormack, 395 U.S. 486, 548 (1969) (“Unquestionably, Congress has an interest in preserving its institutional integrity.”). That is especially so where the Michigan Constitution expressly requires the Legislature to enact laws to preserve the purity of elections. Plaintiff seeks to dismantle those statutory protections just before what Plaintiff itself predicts will be a tidal wave of new absentee voting. Absent intervention, the Legislature’s strong interest in ensuring that Michigan votes are cast without the taint of fraud would be irreparably harmed.
3. No current party adequately represents the Legislature’s interests. Finally, the Sixth Circuit’s intervention analysis requires an examination of whether the “present parties . . . adequately represent the applicant’s interest.” Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989). Once again, the requirement is not onerous. The prospective intervenor need only show that the representation of its interest “may be inadequate.” Trbovich v. UMW, 404 U.S. 528, 538, n.10 (1972);
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Michigan State AFL-CIO, 103 F.3d at 1247. This requirement “underscores both the burden on those opposing intervention to show the adequacy of the existing representation and the need for a liberal application in favor of permitting intervention.” Nuesse v. Camp, 385 F.2d 694, 702 (D.C. Cir. 1967).
As previewed above, there are strong indications that Attorney General Nessel will not, in the end, adequately represent the Legislature’s interests by vigorously defending the challenged statutes. “It has been said that, given this standard, the applicant should be treated as the best judge of whether the existing parties adequately represent his or her interests, and that any doubt regarding adequacy of representation should be resolved in favor of the proposed intervenors.” 6 MOORE’S FEDERAL PRACTICE § 24.03[4][a], at 24-42 (3d ed.) (footnote omitted) (emphasis added).
The Sixth Circuit has held that even a potential divergence in interest satisfies this factor of the analysis. “The [Legislature’s] burden with respect to establishing that its interest is not adequately protected by the existing party to the action is a minimal one.” Blackwell, 467 F.3d at 1008. In a voting-law case similar to this one, the Sixth Circuit recognized that the Ohio Secretary of State’s “primary interest is in ensuring the smooth administration of the election, while the State and General Assembly have an independent interest in defending the validity of Ohio laws and ensuring that those laws are enforced.” Id. This dichotomy and the Ohio Secretary
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of State’s desire not to defend the Ohio law satisfied the Sixth Circuit that “the interests of the Secretary and the State of Ohio potentially diverge,” such that intervention was warranted. Id. (emphasis added); see also Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 824 (9th Cir. 2001) (“It is sufficient for Applicants to show that, because of the difference in interests, it is likely that Defendants will not advance the same arguments as Applicants”) (emphasis added).
So too here. Attorney General Nessel has been outwardly hostile to Michigan’s protections against voter fraud and, in general, the notion of defending laws that she does not agree with, demonstrating the need for intervention. Attorney General Nessel’s statements on closely linked matters and the related underlying policies reasonably can be extrapolated for this case. Below is just a sampling of her public statements on these matters:
• “Our democracy in Michigan restricts the rights of the voters.” – Attorney General Nessel, March 12, 20195
• “I will not waste taxpayer money and embarrass our state by defending flagrantly unconstitutional laws which are summarily overturned by the courts.” - Attorney General Nessel, May 29, 20186
5
https://www.facebook.com/plugins/post.php?href=https%3A%2F%2Fwww.facebo ok.com%2FDanaNesselAG%2Fposts%2F2235038193491842
6
https://www.facebook.com/plugins/post.php?href=https%3A%2F%2Fwww.facebo ok.com%2FDanaNesselAG%2Fposts%2F2012274382434892
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These statements mirror the allegations in the Complaint itself. They evidence hostility to the framework of voting laws enacted to protect the integrity of Michigan elections, suggesting that any restrictions on voting (even those that target fraud) are attacks on democracy itself, and arrogate to the Attorney General the authority to decide which laws they will enforce and which they will deem—without the need for judicial review—unconstitutional or simply undesirable. Such statements do not reflect a party that will vigorously defend this lawsuit, and they emphasize the need for the Legislature’s intervention.
The Legislature’s concerns are further reinforced by the actions taken by Attorney General Nessel and Secretary Benson in recent voting-related cases. In College Democrats, for instance, Secretary Benson (represented by Attorney General Nessel) took over the litigation when she assumed office and fundamentally changed the trajectory of the case. Instead of a fulsome defense of Michigan laws that had been on the books for almost 20 years, Secretary Benson stipulated to a dismissal and letter agreement in which she consented to myriad concessions to valid Michigan statutes. In the recent litigation concerning Michigan’s congressional districts, the Legislature gave Secretary Benson (again represented by Attorney General Nessel) the benefit of the doubt, waiting to intervene until her positions in that action were explicitly stated in the pleadings. But that restraint backfired, and
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the Legislature’s interests were impaired on the eve of trial with a proposed settlement and consent judgment.
The need for intervention in this case is even more pronounced than in either of the prior cases. Given the confluence of party allegiance, prior statements sympathetic to Plaintiffs’ core positions underlying this litigation, and a track record of noncommittal representation in prior voting litigation, the need for a party truly adverse to Priorities USA is apparent. Likewise, the Legislature’s particularized interest as a collection of elected officials in preservation of Michigan’s duly enacted election laws favors a finding of inadequate representation here. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995) (“Inadequate representation is most likely to be found when the applicant asserts a personal interest that does not belong to the general public.”) Finally, any attempted settlement of this action without the Legislature’s participation and approval would violate the Michigan Constitution, which gives the Legislature authority to enact laws to regulate the “time, place and manner of all . . . elections.” 1963 Mich. Const., Art. II, § 4(2); see also Case No. 2:17-cv-14148, ECF No. 235, Order Denying Motion to Approve Consent Decree (“[Secretary] Benson lacks the authority— absent the express consent of the Michigan Legislature, which she lacks—to enter into the Proposed Consent Decree.”) The Legislature is therefore entitled to intervene as a matter of right in accordance with Federal Rule 24(a)(2).
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B. Alternatively, the Legislature is Entitled to Permissive Intervention. Even if this Court determines that the Legislature is not permitted to intervene
as a matter of right, it should be granted permissive intervention under Federal Rule 24(b). This rule provides for permissive intervention where a party timely files a motion and “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
Intervention under Rule 24(b) is a “discretionary power” left to the judgment of the district court. Bradley v. Milliken, 828 F.2d 1186, 1193 (6th Cir. 1987). In exercising its broad discretion under this Rule, the Court must consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights. Fed. R. Civ. P. 24(b)(3).
For all the reasons explained above, the Legislature also has a right to intervene in this matter permissively. Because the case is in its infancy, with the pleadings open and no schedule (or scheduling conference) set, the request to intervene is timely and no party will be prejudiced by the Legislature’s intervention.
On the other hand, not allowing the Legislature to intervene would prejudice its interests and rights. Plaintiffs—partisan organizations—attack duly enacted Michigan laws generally, which the Legislature has a right to defend. See Blackwell, 467 F.3d at 1007. Moreover, Plaintiffs specifically target election laws, which the Legislature is constitutionally obligated to enact to preserve the purity of elections.
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1963 Mich. Const., Art. II, § 4(2). In addition, the Legislature has a specific interest in protecting from interference to preserve the integrity of the institution. Powell, 395 U.S. at 548. To ensure a full and fair adversarial process, the Legislature should be permitted to intervene in this matter as a defendant.
CONCLUSION For the foregoing reasons, the Legislature respectfully asks that the Court grant its motion to intervene to protect its interests in the integrity of Michigan’s voting laws and to ensure a full and fair adjudication of this matter on the merits, following a truly adversarial process.

Dated: February 27, 2020

Respectfully submitted,
BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com meyers@bsplaw.com steinberger@bsplaw.com

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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2020, I electronically filed the foregoing with the Clerk of the Court using the ECF System, which will send notification to all ECF counsel of record.
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47575)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE INC., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,

Plaintiffs,

Case No. 19-13341

v.

HONORABLE STEPHANIE D. DAVIS

MAGISTRATE R. STEVEN WALEN

DANA NESSEL, in her

official capacity as Attorney General

of the State of Michigan,

Defendant. /

THE MICHIGAN SENATE AND MICHIGAN HOUSE OF REPRESENTATIVES’ ANSWER TO PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Proposed Intervenors the Michigan House of Representatives and the

Michigan Senate (“the Legislature”), through their counsel, submit the following

Answer to Plaintiffs’ Amended Complaint for Declaratory and Injunctive Relief.

For avoidance of doubt, the Legislature generally denies all allegations except those

specifically admitted.

INTRODUCTION

1. The Legislature admits only that this paragraph contains quotes from

court opinions but denies the inference of applicability to this case. The Legislature

denies the remaining allegations of this paragraph.

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2. The Legislature admits Proposal 3 passed in the November 6, 2018 general election. The Michigan Constitution speaks for itself. The Legislature denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
3. The Legislature denies that Michigan law bans efforts to encourage and assist voters. The Legislature further denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize MCL 168.931 and 168.759, which speak for themselves.
4. Denied. 5. Denied. 6. The Legislature admits the Michigan Primary Election is on March 10, 2020, and the 2020 General Election is on November 3, 2020. The Legislature further denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
PARTIES 7. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph. 8. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph. 9. The Legislature lacks knowledge or information sufficient to form a
2

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belief as to the truth of the allegations of this paragraph. 10. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 11. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 12. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 13. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 14. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 15. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 16. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 17. The Legislature denies the allegations of this paragraph to the extent
they are inconsistent with or attempt to characterize applicable law. The Michigan Constitution speaks for itself. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
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18. The Legislature admits Dana Nessel is the Attorney General of the State of Michigan and the top law enforcement official responsible for prosecuting the laws of the State of Michigan. The Legislature otherwise denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
JURISDICTION AND VENUE 19. The Legislature admits only that Plaintiff invokes 42 U.S.C. § 1983 and 28 U.S.C. § 2201 as the basis for this action and denies that Plaintiff’s claims have merit. 20. The Legislature admits this Court has subject-matter jurisdiction of the claims arising under 42 U.S.C. §1983 but denies that this Court has subject-matter jurisdiction over Plaintiff’s statutory preemption claims. 21. Admitted. 22. The Legislature admits only that this Court has authority to enter judgment ordering declaratory and injunctive relief but denies that exercise of that authority is proper here. 23. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
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24. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
25. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
26. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
27. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
28. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
29. Admitted. 30. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph. 31. The Legislature lacks knowledge or information sufficient to form a
5

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belief as to the truth of the allegations of this paragraph. 32. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. GENERAL ALLEGATIONS1
33. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
34. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize MCL 168.931, which speaks for themselves .
35. The Legislature denies the allegations of this paragraph, including Footnote 1, to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
36. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
37. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
38. Denied.
1 The Legislature declines to restate Plaintiff’s argumentative subheadings, which are not allegations to which a response is required.
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39. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature specifically denies that provisions of MCL 168.931 are arbitrary.
40. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
41. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
42. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
43. Denied. 44. Denied. 45. Denied. 46. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 47. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
7

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48. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
49. The Legislature admits Proposal 3 passed in the November 6, 2018 general election. The Michigan Constitution speaks for itself. The Legislature denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
50. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
51. The Legislature denies the allegations of this paragraph, including Footnote 2, to the extent they are inconsistent with or attempt to characterize applicable law.
52. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
53. Denied 54. Denied. 55. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature specifically denies that other statutes “diminish the need” for MCL 168.759.
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COUNT I 56. Denied. 57. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 58. Denied. 59. Denied. 60. Denied.
COUNT II 61. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 62. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 63. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 64. Denied.
COUNT III 65. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 66. Denied. 67. The Legislature denies the allegations of this paragraph to the extent
9

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they are inconsistent with or attempt to characterize applicable law. 68. Denied. 69. Denied. 70. The Legislature denies the allegations of this paragraph to the extent
they are inconsistent with or attempt to characterize applicable law. COUNT IV
71. The Legislature hereby incorporates all other paragraphs as if fully set forth herein.
72. Denied. 73. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 74. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 75. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 76. Denied. 77. Denied. 78. Denied.
COUNT V 79. The Legislature hereby incorporates all other paragraphs as if fully set
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forth herein. 80. Denied. 81. Denied. 82. Denied. COUNT VI 83. The Legislature hereby incorporates all other paragraphs as if fully set
forth herein. 84. Denied. 85. Denied. 86. Denied. 87. The Legislature denies the allegations of this paragraph to the extent
they are inconsistent with or attempt to characterize applicable law. 88. Denied. COUNT VII 89. The Legislature hereby incorporates all other paragraphs as if fully set
forth herein. 90. Denied. 91. Denied. 92. Denied. COUNT VIII
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93. The Legislature hereby incorporates all other paragraphs as if fully set forth herein.
94. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
95. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
96. Denied. 97. Denied.
PRAYER FOR RELIEF WHEREFORE, the Legislature respectfully requests that the Complaint be dismissed with prejudice and that they be awarded costs, reasonable attorney fees, and such further relief as the Court deems just and equitable.
AFFIRMATIVE DEFENSES 1. Plaintiffs have failed to state a claim upon which relief can be granted. 2. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches. 3. Plaintiffs lack standing. 4. Plaintiffs are barred from raising others’ rights and generalized grievances under the doctrine of prudential standing. 5. Plaintiff’s claims are non-justiciable political questions.
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6. Plaintiffs do not allege a cognizable case or controversy.
7. This Court lacks subject-matter jurisdiction over Plaintiffs’ preemption
claims.
8. Plaintiffs’ claims are barred by federal abstention doctrine.
9. Plaintiffs’ Associational and Speech claims are multiplicative of their
Undue Burden claims.
10. Plaintiffs’ claims are not ripe for adjudication.
11. Plaintiffs’ claims are barred by the Eleventh Amendment to the United
States Constitution.
The Legislature reserves the right to add additional affirmative defenses as the
result of discovery or otherwise.
Respectfully submitted,
BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com meyers@bsplaw.com steinberger@basplaw.com
Dated: February 27, 2020
13

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 40 filed 03/02/20 PageID.733 Page 1 of 55

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE JUDGE R. STEVEN WHALEN
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT

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TABLE OF CONTENTS

PAGE

CONCISE STATEMENT OF THE ISSUES .......................................................... x
CONTROLLING OR MOST APPROPRIATE AUTHORITY ..............................xi INTRODUCTION ....................................................................................................1
BACKGROUND ......................................................................................................1
LEGAL STANDARD...............................................................................................2
ARGUMENT ............................................................................................................3
I. This Court has jurisdiction. ..........................................................................3
A. Plaintiffs have Article III standing.....................................................3
1. Plaintiffs are injured-in-fact because the challenged laws require them to divert resources.....................................................4
2. The credible threat of prosecution standard is not an obstacle to Plaintiffs’ Article III standing......................................7
a. Plaintiffs are not required to allege or prove a credible threat of prosecution.......................................................................7
b. Plaintiffs have pleaded a credible threat of prosecution. ...............9
B. Although not required, Plaintiffs have prudential standing to assert the rights of third parties for the two undue burden claims. ............................................................................................... 10
1. The Randolph Institute has prudential standing to assert undue burden claims. ...................................................................12
2. Rise has prudential standing to assert undue burden claims. ..........................................................................................13
C. The Court has jurisdiction over this declaratory judgment action. ...............................................................................................14
II. Plaintiffs have stated a claim that the Absentee Ballot Organizing Ban is unconstitutional and preempted by federal law. .............................16
A. Plaintiffs have stated a claim that the Absentee Ballot Organizing Ban is an unconstitutional infringement of First and Fourteenth Amendment speech and association rights. ............16

-i-

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TABLE OF CONTENTS

PAGE

1. The Absentee Ballot Organizing Ban regulates political expression. .................................................................................... 16
2. Plaintiffs have stated a claim that the Absentee Ballot Organizing Ban is unconstitutional..............................................19
a. The Absentee Ballot Organizing Ban should be analyzed under a First Amendment framework. .........................................19
b. The Absentee Ballot Organizing Ban is not narrowly tailored to serve a compelling government interest. ....................20
(i)The Registration Requirement .................................................22
(ii) The Solicitation Ban ......................................................23
B. Plaintiffs allege that the Absentee Ballot Organizing Ban is unconstitutionally vague. .................................................................25
C. Plaintiffs have sufficiently pleaded that the Voting Rights Act preempts the Absentee Ballot Organizing Ban .........................28
III. Plaintiffs have stated a claim that the Voter Transportation Ban is unconstitutional and preempted by federal law..........................................30
A. Plaintiffs have alleged that the Voter Transportation Ban is unconstitutionally vague and overbroad. .........................................30
B. Plaintiffs have alleged that the Voter Transportation Ban is an unconstitutional infringement of First and Fourteenth Amendment speech and association rights. .....................................32
1. The Voter Transportation Ban regulates political expression. .................................................................................... 32
2. The Voter Transportation Ban is not sufficiently related to any government interest...........................................................33
a. The Voter Transportation Ban is not closely drawn to serve a cognizable anticorruption interest....................................33
b. The Voter Transportation Ban does not bear a substantial relationship to a sufficiently important government interest. .........................................................................................34
C. Plaintiffs have alleged that Federal law preempts the Voter Transportation Ban...........................................................................36

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TABLE OF CONTENTS

PAGE

1. FECA’s preemption provision and its accompanying regulation expressly preempt the Voter Transportation Ban. ..............................................................................................37
2. The Voter Transportation Ban is impliedly preempted. ..............38
IV. Plaintiffs have stated a claim that the challenged laws unduly burden the fundamental right to vote......................................................................40
CONCLUSION .......................................................................................................42

-iii-

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CASES

TABLE OF AUTHORITIES

PAGE

Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015)........................................................................................14
Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................3, 16, 30, 41
Ass’n of Banks in Ins., Inc. v. Duryee, 270 F.3d 397 (6th Cir. 2001) ..............................................................................39
Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) ............................................................................23
Bowsher v. Synar, 478 U.S. 714 (1986)..............................................................................................3
Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999).....................................................................................passim
Buckley v. Valeo, 424 U.S. 1 (1976)..............................................................................17, 33, 34, 35
Burdick v. Takushi, 504 U.S. 428 (1992)............................................................................................41
Burson v. Freeman, 504 U.S. 191 (1992)............................................................................................23
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).....................................................................................passim
Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., 275 F. Supp. 3d 849 (S.D. Ohio 2017) ...............................................................18
Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009) ............................................................................4
Courtright v. City of Battle Creek, 839 F.3d 513 (6th Cir. 2016) ................................................................................3
-iv-

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CASES

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PAGE

Crawford v. Marion Cty. Election Bd., 472 F.3d 949, aff’d, 553 U.S. 181 (2008).........................................................4, 5

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000)............................................................................................39

Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) ..............................................................................19

Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324 (N.D. Ga. 2018).................................................................7

Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 16 (D.C. Cir. 2009)....................................................................32, 33

Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) ................................................................................6

Felder v. Casey, 487 U.S. 131 (1988)............................................................................................40

Feldman v. Ariz. Sec. of State’s Office, 840 F.3d 1057 (9th Cir. 2016) ............................................................................19

Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) ..............................................................13

Fla. State Conference of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ............................................................................4

Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88 (1992)..............................................................................................28

Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000)............................................................................................40

Gifford v. Congress, 452 F. Supp. 802 (E.D. Cal. 1978) .....................................................................39

Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007) ......................................................................25, 42
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Havens Realty Corporation v. Coleman, 455 U.S. 363, 379 (1982)......................................................................................5

Hernandez v. Woodard, 714 F. Supp. 963 (N.D. Ill. 1989).................................................................17, 19
Hines v. Davidowitz, 312 U.S. 52 (1941)..............................................................................................38
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987)............................................................................................38
Jacobson v. Lee, No. 4:18cv262-MW/CAS, 2019 WL 6044035 (N.D. Fla. Nov. 15, 2019) .....................................................................................................................7
John Doe #1 v. Reed, 561 U.S. 186 (2010)............................................................................................20
Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014) ..............................................................................11
Kowalski v. Tesmer, 543 U.S. 125 (2004)......................................................................................12, 14
League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N. D. Fla. 2012) .......................................................17, 19
League of Women Voters v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019) .....................................................passim
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)............................................................................................11
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)..............................................................................................4
McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) ......................................................................8, 9, 10 -vi-

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MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)............................................................................................15

Meyer v. Grant, 486 U.S. 414 (1988).....................................................................................passim

Mote v. City of Chelsea, 284 F. Supp. 3d 863 (E.D. Mich. 2019) ...............................................................5

NAACP v. Button, 371 U.S. 415 (1963).....................................................................................passim

Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016) ........................................................................5, 6, 9

Ohio A. Philip Randolph Inst. v. Householder, 367 F. Supp. 3d 697 (S.D. Ohio 2019) ...............................................................14

Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016) ..............................................................................41

Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990) ................................................................................3

Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015) ................................................................................6

Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447 (6th Cir. 2014) ..........................................................................8, 10

Project Vote v. Blackwell, 455 F. Supp. 2d 694 (N.D. Ohio 2006) ........................................................17, 19

Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) ..............................................................................13

Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ., 584 F.3d 253 (6th Cir. 2009) ................................................................................3

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Scott v. Schedler, 771 F.3d 831 (5th Cir. 2014) ................................................................................4

Shays v. Fed. Election Comm’n, 414 F.3d 76 (D.C. Cir. 2005)..............................................................................27

Sims v. Mercy Hosp. of Monroe, 451 F.2d 171 (6th Cir. 1971) ..............................................................................21

State Farm Bank v. Reardon, 539 F.3d 336 (6th Cir. 2008) ..............................................................................37

Steffel v. Thompson, 415 U.S. 452 (1974) (Rehnquist, J., concurring)................................................15

Susan B. Anthony v. Driehaus, 573 U.S. 149 .........................................................................................................8

United States v. Johnson, 135 S. Ct. 2551 (2015)........................................................................................26

United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994) ..................................................................................2

Virginia v. Am. Booksellers Ass’n, 484 U.S. 383 (1988)..............................................................................................8

Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) ...................................................................................................................38

Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214 (1992)............................................................................................27

Zynda v. Arwood, 175 F. Supp. 3d 791 (E.D. Mich. 2016) ...............................................................5

STATUTES

52 U.S.C. § 10508....................................................................................................29

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52 U.S.C. § 30143..............................................................................................37, 38

Mich. Comp. Laws § 168.759(4) ...................................................................2, 23, 26

Mich. Comp. Laws § 168.759(5) ...................................................................2, 23, 26

Mich. Comp. Laws § 168.759(8) ...............................................................................2

Mich. Comp. Laws § 168.931(1)(f).....................................................................2, 30

Mich. Comp. Laws § 168.932(a) .............................................................................36

Michigan Compiled Laws § 168.940.......................................................................10

OTHER AUTHORITIES

11 C.F.R. § 108.7 ...............................................................................................37, 38

11 C.F.R. § 114.3(c)(4)(i) ..................................................................................37, 39

11 C.F.R. § 114.4(d)(1)................................................................................32, 37, 39

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CONCISE STATEMENT OF THE ISSUES Defendant Attorney General Dana Nessel has moved to dismiss the Amended Complaint of Plaintiffs Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute, which challenges the Absentee Ballot Organizing Ban and Voter Transportation Ban, for lack of jurisdiction and failure to state a claim. The motion to dismiss should be denied for at least the following reasons: 1. Plaintiffs have standing to bring claims in their own right; 2. To the extent the prudential standing doctrine remains good law,
Plaintiffs have satisfied prudential standing requirements; 3. This case is an appropriate declaratory judgment action; and 4. Plaintiffs have plausibly alleged, in eight distinct counts, that the
challenged provisions are unconstitutional and preempted by federal law.
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CONTROLLING OR MOST APPROPRIATE AUTHORITY
Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) Buckley v. Am. Const’l Law Found., Inc., 525 U.S. 182 (1999) Buckley v. Valeo, 424 U.S. 1 (1976) Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310 (2010) Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009) Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982) League of Women Voters v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019) Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) Meyer v. Grant, 486 U.S. 414 (1988) Ne. Ohio Coal. for the Homeless (“NEOCH”) v. Husted, 837 F.3d 612 (6th Cir. 2016) NAACP v. Button, 371 U.S. 415 (1963) Platt v. Bd. of Commissioners on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447 (6th Cir. 2014). Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) Statutes and Regulations Michigan Compiled Laws § 168.931 Michigan Compiled Laws § 168.759 52 U.S.C. § 30143 11 C.F.R. § 108.7 11 C.F.R. § 114.3 11 C.F.R. § 114.4
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INTRODUCTION Michigan’s Absentee Ballot Organizing Ban and Voter Transportation Ban directly and severely impact the right to vote. Because these provisions target the persons and organizations who assist voters instead of directly proscribing the actions of voters themselves, Plaintiffs have standing. Indeed, Plaintiffs’ Amended Complaint, Dkt. 17, identifies specific ways that the challenged laws injure Plaintiffs and impede their operations. Plaintiffs’ allegations must be taken as true on a motion to dismiss and are more than sufficient to satisfy Article III’s injury-in-fact standing requirement. The standing inquiry should end there. To the extent prudential standing doctrine remains sound law, it only applies to the two claims regarding undue burden on the right to vote and is satisfied. Regardless of whether First Amendment scrutiny or Anderson-Burdick applies, Plaintiffs have plausibly alleged constitutional violations. Plaintiffs have also plausibly alleged that these provisions are preempted by federal law. The Motion to Dismiss, Dkt. 27, should be denied.
BACKGROUND Plaintiffs Priorities USA, Rise, and the Detroit/Downriver Chapter of the A. Philip Randolph Institute (the “Randolph Institute”) challenge both the Voter
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Transportation Ban (Mich. Comp. Laws § 168.931(1)(f)) and the Absentee Ballot Organizing Ban (Mich. Comp. Laws § 168.759(4), (5), (8)).
The Absentee Ballot Organizing Ban is comprised primarily of two parts: (1) a registration requirement that allows only persons who are registered voters in Michigan to assist voters with their absentee ballot applications, and (2) a solicitation ban which bans requesting or soliciting to assist voters with their absentee ballot applications. Mich. Comp. Laws § 168.759(4), (5), (8). Once a person has violated the solicitation ban, they are no longer allowed to possess an application. Id. § 168.759(8). Neither the registration requirement nor the solicitation ban applies to a member of a voter’s household or immediate family. Id. § 168.759(4).
The Voter Transportation Ban provides that “[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.” Mich. Comp. Laws § 168.931(1)(f). Dkt. 22-1 at 12-19 (describing the challenged laws).
LEGAL STANDARD When a defendant challenges the factual existence of subject matter jurisdiction, the court has broad discretion to weigh and consider evidence to “satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) “[A] trial court has wide discretion to allow affidavits,
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documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
At the motion-to-dismiss stage, the Court is “required to draw all reasonable inferences in favor of [Plaintiffs].” Courtright v. City of Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016). Plaintiffs need only provide a complaint that “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Plaintiffs easily have done so here.
ARGUMENT I. This Court has jurisdiction.
Defendant raises three jurisdictional arguments in her motion to dismiss: (1) Plaintiffs have not alleged a cognizable injury for the purposes of Article III standing, Dkt. 27 at 23-28; (2) Plaintiffs lack prudential standing to assert the rights of individual voters (this argument is only applicable to two of eight claims), Dkt. 27 at 28-31; and (3) the Court lacks jurisdiction to enter a declaratory judgment. Dkt. 27 at 52–53. Each of these arguments fails.
A. Plaintiffs have Article III standing. When multiple plaintiffs bring the same claims and seek injunctive relief, only one plaintiff needs to demonstrate Article III standing. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986); Sch. Dist. of Pontiac v. Sec’y of the U.S. Dep’t of Educ.,
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584 F.3d 253, 261 (6th Cir. 2009). Here, each plaintiff has demonstrated multiple
theories of standing.
1. Plaintiffs are injured-in-fact because the challenged laws require them to divert resources.
Plaintiffs have alleged that the challenged laws will (1) frustrate their mission,
Dkt. 17 ¶¶ 7–17, 24; (2) require them to divert resources from other programming,
Dkt. 17 ¶ 25; and (3) require them to expend employee and volunteer time to ensure
compliance with the challenged laws, Dkt. 17 ¶¶ 25–26. These allegations are more
than sufficient to confer standing. “[O]n a motion to dismiss[,] [the court] presum[es]
that general allegations embrace those specific facts that are necessary to support the
claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
Where an organizational plaintiff alleges that it must expend additional funds,
reallocate resources from its other activities due to a defendant’s unlawful conduct,
or dedicate personnel time to address a law, courts have found that such injuries satisfy the Article III requirements. The cases on this point are innumerable.1
1 See, e.g., Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350–51 (11th Cir. 2009) (finding standing where the NAACP had to divert its activities from taking citizens to the polls to helping voters obtain photo IDs); Scott v. Schedler, 771 F.3d 831, 836–39 (5th Cir. 2014) (finding standing because a single organizational officer dedicated time to an effort); Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1165–66 (11th Cir. 2008) (finding organization’s anticipation that they will have to divert resources to educate voters on compliance with and to resolve the effects of the challenged law sufficiently created a concrete injury); Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951, aff’d, 553 U.S. 181 (2008) (finding
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For example, in Havens Realty Corporation v. Coleman, the Supreme Court
held that a plaintiff-organization had sufficiently alleged standing based on its
allegation that it “ha[d] been frustrated” by the defendant’s conduct, and as a result,
the organization “had to devote significant resources to identify and counteract the
defendant’s [sic] racially discriminatory steering practices.” 455 U.S. 363, 379
(1982) (second alteration in original). The Court recognized that these allegations
identified “concrete and demonstrable injury to the organization’s activities[,] with
the consequent drain on the organization’s resources,” which was “far more than
simply a setback to the organization’s abstract social interests.” Id.2
organizational standing when the Democratic Party was compelled “to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law”); Mote v. City of Chelsea, 284 F. Supp. 3d 863, 887 (E.D. Mich. 2019) (organization had standing when it diverted resources to secure the defendant’s Americans with Disabilities Act compliance, because “that diversion of resources ha[d] impacted its capacity to provide the range of other services that it offers to disabled persons”); Zynda v. Arwood, 175 F. Supp. 3d 791, 804 (E.D. Mich. 2016) (finding organizational standing due to diversion of resources). 2 See also Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007) (“[T]he new law injures the Democratic Party by compelling the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote.”), aff’d, 553 U.S. 181; id. (“The fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury.”); Ne. Ohio Coal. for the Homeless (“NEOCH”) v. Husted, 837 F.3d 612, 624 (6th Cir. 2016) (finding standing where the organization “overhauled” its election strategy and redirected its focus to in-person voting instead of absentee voting).
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Defendant cites Fair Elections Ohio v. Husted in an effort to escape the weight of authority, see Dkt. 27 at 14, but her argument is easily dismissed. 770 F.3d 456 (6th Cir. 2014). In Fair Elections, the Sixth Circuit did not reject the diversion of resources theory. Instead, the court found an absence of proof at the summary judgment phase. See Fair Elections, 770 F.3d at 460. Here, at the pleading stage, Plaintiffs’ allegations must be accepted as true. See Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 710 (6th Cir. 2015).3
Defendant’s efforts to distinguish NEOCH are equally unavailing. Dkt. 27 at 27. Defendant suggests that the statute in NEOCH was more vulnerable because it had only recently been amended, in contrast to the Voter Transportation Ban. But this distinction is wholly irrelevant: A law’s age has nothing to do with whether Plaintiffs have plausibly alleged a concrete injury taking place today.
Defendant neither explains why a “long-existing” law cannot create an organizational injury in the form of diverted resources, nor does she cite any authority that adopts such a sweeping rule. See Dkt. 27 at 27. The law, in fact, is to the contrary: “It is immaterial whether the organizational injury resulted from a change in the law or a change in election-year conditions and circumstances that bring into focus potential problems with the state’s statutory framework.”
3 Moreover, Plaintiffs have submitted declarations in support of their application for preliminary injunction that amply support its allegations. Dkt. 22-4, 22-5, 22-6.
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Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324, 1337 (N.D. Ga. 2018). All that is required to meet the injury-in-fact requirement is a plaintiffs’ detrimental diversion of resources. Id.4
Indeed, these statutes have taken on new and heightened meaning in recent years. The Voter Transportation Ban was passed in the days before hired vehicle transportation, like rideshare companies Uber and short-term rental companies like ZipCar became a central feature of modern transportation. Uber’s rides-to-the-polls promotion, which benefited voters everywhere in the country except for Michigan in 2018, did not exist in 1982 when the law was amended. Dkt. 17 ¶ 41. And the Absentee Ballot Organizing Ban predates Proposal 3, which dramatically increases the role of absentee ballot voting in Michigan’s elections. Dkt. 17 ¶¶ 2, 17.
Accordingly, Plaintiffs have easily satisfied the injury-in-fact standard. 2. The credible threat of prosecution standard is not an obstacle to Plaintiffs’ Article III standing. a. Plaintiffs are not required to allege or prove a credible threat of prosecution.
Defendant suggests that any plaintiff raising a First Amendment challenge to a law with attendant criminal penalties must prove a credible threat of prosecution
4 See also Jacobson v. Lee, No. 4:18cv262-MW/CAS, 2019 WL 6044035 at *6–7 (N.D. Fla. Nov. 15, 2019) (demonstrating standing to challenge state’s 70-year-old ballot order law because it forced Priorities to expend and divert additional funds and resources at the expense of its efforts in other states to combat the effects of the challenged election law).
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to establish Article III standing. See Dkt. 27 at 24–25. This argument is that the potential future criminal prosecution serves as the only injury-in-fact. See id. at 23.
Defendants are wrong. Plaintiffs have alleged two ongoing and concrete injuries separate and apart from any threat of prosecution.
First, Plaintiffs are required to expend and divert resources to ensure compliance with the challenged laws, and injury not dependent on a future criminal prosecution but engendered by the law’s existence and ongoing effectiveness.5
Second, the challenged laws ban expressive conduct that Plaintiffs would otherwise engage in. Plaintiffs (1) desire to possess absentee ballot applications after requesting to do so, and (2) desire to pay for drivers and vehicles to transport voters to the polls. Dkt. 17 ¶ 23. The laws unequivocally prohibit this conduct and objectively chill certain activities.
Though some courts have analyzed the credibility of the threat of prosecution, they do so where there is some question about whether the challenged law would even apply to the plaintiff’s conduct. See Susan B. Anthony v. Driehaus, 573 U.S. 149, 162-63; (2014); McKay v. Federspiel, 823 F.3d 862, 868–70 (6th Cir. 2016) (challenged law did not apply to those who received the judge’s permission); Platt
5 Cf. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392 (1988) (plaintiff suffered Article III injury in pre-enforcement First Amendment challenge because “the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution”).
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v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447, 452 (6th Cir. 2014) (challenged parts of the Code “at least chill” the plaintiff’s desired “form of communication.”). Because the challenged law may not have applied to the plaintiff’s intended conduct, the chill on expressive conduct was “subjective.” McKay, 823 F.3d at 868.
Here, in sharp contrast, there is no dispute that the challenged laws apply, and the chill on protected conduct is plain, clear, and objective. Courts regularly exercise jurisdiction without analyzing the credibility of the threat of prosecution in cases, like this, where plaintiffs allege a desire to engage in expressive conduct that is burdened or banned by a challenged election-related law that carries criminal penalties. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310, 318 (2010) (not discussing credibility of threat of prosecution under challenged law); Meyer, 486 U.S. at 417 (same); NEOCH, 837 F.3d at 622–24 (same). Accordingly, the injury to First Amendment interests, standing alone, is more than sufficient to confer Article III standing.
b. Plaintiffs have pleaded a credible threat of prosecution.
In any event, Plaintiffs have plainly pleaded a credible threat of prosecution. A credible threat of prosecution can be proven through “some combination of” (1) “a history of past enforcement against the plaintiffs or others”; (2) “enforcement warning letters sent to the plaintiffs regarding their specific conduct”; (3) “an
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attribute of the challenged statute that makes enforcement easier or more likely”; or (4) “a defendant’s refusal to disavow enforcement of the challenged statute against a particular plaintiff.” McKay, 823 F.3d at 868–70.
Here, Defendant and every county prosecutor in Michigan have refused to disavow enforcement of the challenged laws against Priorities or anyone else who desires to engage in the activity banned by those statutes. Dkt. 17 ¶¶ 27–28, 30–32; Dkt. 22-9, Dkt. 22-10; Dkt. 22-11. Indeed, far from disavowing prosecution of the challenged laws, Defendant Attorney General Nessel has aggressively defended their constitutionality. Dkt. 17 ¶ 29; Dkt. 10; Dkt. 27.
Plaintiffs have also alleged that the “Defendant and all Michigan prosecuting attorneys have a duty to investigate and prosecute violations of Michigan election laws like the Voter Transportation Ban and the Absentee Ballot Organizing Ban” under Michigan Compiled Laws § 168.940. Dkt. 17 ¶ 18. This attribute of Michigan’s election laws coupled with Defendant’s refusal to disavow prosecution constitutes a credible threat of prosecution. See Platt, 769 F.3d at 452–53 (credible threat where state refused to disavow prosecution under a citizen petition provision).
B. Although not required, Plaintiffs have prudential standing to assert the rights of third parties for the two undue burden claims.
Defendant appears to argue that all of Plaintiffs’ claims invoke the rights of third parties and should be subjected to dismissal pursuant to the prudential standing doctrine. Dkt. 27 at 28. As a threshold matter, this argument fundamentally
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misunderstands six of Plaintiffs’ eight causes of action. Plaintiffs’ claims alleging vagueness and overbreadth (Counts I and V), First and Fourteenth Amendment violations of speech and associational rights (Counts II and VI), and preemption (Counts IV and VIII) all rely on Plaintiffs’ own rights and injuries as organizations. The only claims that would have historically been susceptible to review under the prudential standing doctrine are Plaintiffs’ claims alleging undue burdens on the fundamental right to vote (Counts III and VII), because these are the only causes of action for which Plaintiffs assert the legal rights of third parties—voters themselves.
The Supreme Court, moreover, has cast doubt over the “continuing vitality” of dismissals on prudential grounds after a plaintiff has established Article III standing. Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir. 2014) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014)). A dismissal based on prudential considerations is in “tension” with the Supreme Court’s admonition that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, Inc., 572 U.S. at 126 (citations omitted); Kiser, 765 F.3d at 606–07 (addressing only the ripeness inquiry and declining to apply the prudential framework in light of Lexmark). Because Plaintiffs have established Article III standing to challenge the Absentee Ballot Organizing Ban and the Voter Transportation Ban, see supra at I.A., this Court should not dismiss any cause of action on prudential standing grounds.
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But even if the Court were to conduct a prudential standing analysis, Plaintiffs have prudential standing to assert the rights of Michigan voters because there exists (1) a close relationship between the party asserting the claim and the person possessing the right; and (2) a hindrance to the possessor’s ability to protect her own interest. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Because this is a prudential standing doctrine, the Court has “been quite forgiving with these criteria in certain circumstances.” Id. Those circumstances include issues such as those at play here, where “enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Id. (emphasis added).
1. The Randolph Institute has prudential standing to assert undue burden claims.
The Randolph Institute’s mission is “to fight for human equality and economic justice and to seek structural changes through the American democratic process.” Dkt. No. 22-5 ¶ 2. It is a membership organization, id. at ¶ 7, and members are “involved in voter registration, political and community education, lobbying, legislative action and labor support activities.” Id. ¶ 3. The organization undertakes activities to encourage the Detroit/Downriver community to vote, make plans to vote, and provide assistance with voting. Id. ¶ 5.
The Randolph Institute has developed close relationships with its members and the voters whose rights they seek to vindicate, namely young voters, hourly wage workers, senior voters, voters who are disabled, low-income voters, college-
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aged voters, and voters with limited English proficiency. Id. at ¶¶ 6, 11, 16–18 (describing activities in greater detail). These are the very voters upon whom the burdens imposed by of the Absentee Ballot Organizing Ban and Voter Transportation Ban fall the hardest. Dkt. 17 ¶¶ 4, 74. They are likely to face a hinderance in asserting their right to vote for the same reason that the challenged laws create a burden. Dkt. 22-5 at ¶ 9.
2. Rise has prudential standing to assert undue burden claims. Rise, too, has a close relationship with the student voters whose rights it seeks to assert. Rise is a student-driven organization whose leadership, organizers, partners, and volunteers are all students. Dkt. 22-6 ¶ 5. The student voters that Rise seeks to organize and mobilize to vote have limited resources—chief among them, transportation, time, and money—and those obstacles make it more difficult to vote. See Dkt. 22-6 ¶¶ 20, 23 (discussing student resources and access to transportation). The same obstacles serve as a hinderance to those voters independently navigating the legal system to protect their right to vote. Finally, a plaintiff is certainly not required to identify a specific voter disenfranchised by a challenged election policy when it is inevitable that some voters will be harmed. See Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004); see also Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1254 (N.D. Fla. 2016) (“Plaintiff need not identify specific aspiring eligible voters
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who intend to register as Democrats and who will be barred from voting; it is sufficient that some inevitably will.”). Where a challenged law dramatically reduces the resources available to voters to vote, injury to some voters is inevitable. Dkt. 17 ¶¶ 36–38, 41, 42, 70.
The prudential rule against third party standing “assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation.” Kowalski, 543 U.S. at 129. That assumption is not correct here. By virtue of age, lack of mobility, socioeconomic status, limited English proficiency, or some combination of the above, these voters face a hindrance in both voting and protecting their right to vote. The Court should exercise its jurisdiction to hear these claims. 6
C. The Court has jurisdiction over this declaratory judgment action. Defendant next asserts that a declaratory judgment is inappropriate because “Plaintiffs[’] claims are not ripe for review.” Dkt. 27 at 53. Defendant’s argument fails, first, because it is premised on the notion that Plaintiffs are not suffering an ongoing injury. Plaintiffs have alleged that the
6 To the extent that Defendant asserts that Plaintiffs lack associational standing, that claim also fails. Plaintiff Randolph Institute satisfies associational standing requirements for membership organizations. See Ohio A. Philip Randolph Inst. v. Householder, 367 F. Supp. 3d 697, 731–32 (S.D. Ohio 2019) (Ohio branch of A. Philip Randolph Institute had associational standing to bring gerrymandering claim); see also Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1269 (2015).
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challenged laws have and will force them to divert resources, Dkt. 17 ¶ 25, and that the challenged laws have dissuaded conduct in which Plaintiffs would have otherwise engaged, Dkt. 17 ¶¶ 7–17, 24–26. That on-going impact makes Plaintiffs’ claims ripe for review.
Second, Defendant’s argument misconstrues the purpose of the Declaratory Judgment Act. As Justice Rehnquist noted, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Steffel v. Thompson, 415 U.S. 452, 480 (1974) (Rehnquist, J., concurring). The law does not “require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). In such cases, plaintiffs can eliminate the threat of prosecution by not doing what they claim the right to do, but that “[does] not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced.” Id.
The “very purpose” of the Declaratory Judgment Act is to ameliorate “[t]he dilemma posed by that coercion—putting the challenger to the choice between abandoning his rights or risking prosecution.” Id. at 130 (internal quotation marks
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omitted). Accordingly, the Court has jurisdiction and should exercise it to issue declaratory judgments regarding the lawfulness of the challenged provisions. II. Plaintiffs have stated a claim that the Absentee Ballot Organizing Ban is
unconstitutional and preempted by federal law. Plaintiffs’ Amended Complaint asserts four claims challenging the legality of the Absentee Ballot Organizing Ban and its two subparts, the registration requirement and the solicitation ban. These allegations “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” as to each of those claims. Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A. Plaintiffs have stated a claim that the Absentee Ballot Organizing
Ban is an unconstitutional infringement of First and Fourteenth Amendment speech and association rights. Defendant argues that (1) the conduct affected by the Organizing Ban is not protected by the First Amendment and (2) the State’s interest in protecting the absentee voting process outweighs any burden posed by the challenged law. Defendant is wrong on both counts. 1. The Absentee Ballot Organizing Ban regulates political
expression. The expression regulated by the Absentee Ballot Organizing Ban is protected by the First and Fourteenth Amendments. Defendant takes a myopic view of the Organizing Ban and the First Amendment interests it implicates. Dkt. 27 at 36–37. She focuses on one aspect of the acts regulated by the statute in abstraction—that is,
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the delivery of an application to a local clerk—and ignores the ban on requesting to
assist voters with returning their absentee ballot application. See id.
The Supreme Court and courts across the country have repeatedly held that
activities aimed at encouraging and assisting voters to participate in the political
process are constitutionally protected speech and association.7
In deciding whether election-related laws implicate First Amendment
interests, the Supreme Court and courts within the Sixth Circuit have looked to
whether the challenged law inhibits (and not just directly regulates) one-on-one
communications between organizers and voters.8
7 See, e.g., Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 186 (1999) (collecting signatures for initiative petitions is protected First Amendment conduct); Meyer, 486 U.S. at 421 (same); League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 720 (M.D. Tenn. 2019) (voter registration organizing is protected First Amendment conduct); League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1158 (N. D. Fla. 2012) (same); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006) (same); Hernandez v. Woodard, 714 F. Supp. 963, 973 & n.11 (N.D. Ill. 1989) (“The First Amendment rights of free speech, press, assembly and petition incorporate ‘a right to band together for the advancement of political beliefs.’” (quoting Hadnott v. Amos, 394 U.S. 358, 364 (1969))); see also Buckley v. Valeo, 424 U.S. 1, 15 (1976) (Supreme Court precedent has “made clear that the First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas” (internal quotation marks omitted)); NAACP v. Button, 371 U.S. 415, 437 (1963) (“Free trade in ideas means free trade in the opportunity to persuade to action.”). 8 See Buckley, 525 U.S. at 192 (“But the First Amendment requires us to be vigilant in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas. We therefore detail why we are satisfied that . . . the restrictions in question significantly inhibit communication with voters about proposed political change . . . .”); Meyer, 486 U.S. at 421–22 (striking down
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Plaintiffs allege the Organizing Ban inhibits just such interactions. See Dkt. 17 ¶¶ 1, 5, 9, 52. The acts it regulates—requesting to assist and assisting voters with
absentee ballot applications—involve one-on-one conversations between politically motivated individuals, such as Rise’s student organizers or the Randolph Institute’s members and volunteers, and voters. Dkt. 17 ¶¶ 52, 59. It is difficult to imagine more
fundamental political activity. Requesting to assist and then assisting voters in applying for absentee ballots, like circulating a petition, “necess[arily] involves . . . the expression of a desire for political change.” Meyer, 486 U.S. at 421. The choice to vote is, after all, a political act in and of itself. See Buckley, 525 U.S. at 195–96.
And that expression is protected by the First and Fourteenth Amendments. See Hargett, 400 F. Supp. 3d at 725 (voter registration activities are protected expression); see also Meyer, 486 U.S. at 421–22.
Defendant ignores this body of case law and instead argues that the Organizing Ban regulates only conduct, not speech. See Dkt. 27 at 36–37. But fundamental rights cannot be so easily dismissed with the wave of a hand. “[A] State
law that inhibits “the type of interactive communication concerning political change that is appropriately described as ‘core political speech’”); Hargett, 400 F. Supp. 3d at 725 (challenged law directly implicates the First Amendment because it “involves the direct regulation of communication and political association, among private parties, advocat[ing] for a particular change.” (alteration in original) (internal quotation marks omitted)); Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., 275 F. Supp. 3d 849, 858 (S.D. Ohio 2017) (challenged rule was not protected by the First Amendment because it did not “directly affect or even involve one-on-one communications with voters.”).
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cannot foreclose the exercise of constitutional rights by mere labels.” Button, 371
U.S. at 429. Indeed, all of the cases cited above involved speech that could be labeled
“conduct”: collecting signatures in Buckley, 525 U.S. at 186, and Meyer, 486 U.S. at
421; voter registration drives in League of Women Voters, 400 F. Supp. 3d at 720,
League of Women Voters of Fla., 863 F. Supp. 2d at 1158, and Project Vote, 455 F.
Supp. 2d at 700; “band[ing] together for the advancement of political beliefs” in
Hernandez, 714 F. Supp. at 972–73 & n.11. First Amendment scrutiny applies here,
even when the subject of the regulation, requesting to and assisting voters with absentee ballot applications, is labeled as “conduct.”9
2. Plaintiffs have stated a claim that the Absentee Ballot Organizing Ban is unconstitutional.
The Absentee Ballot Organizing Ban is subject to exacting or strict scrutiny,
and the State’s purported interest in enforcing the ban to preserve the absentee voting
system is insufficient to justify the law’s continuing operation.
a. The Absentee Ballot Organizing Ban should be analyzed under a First Amendment framework.
9 The out-of-circuit cases Defendant cites about different but related activities such as voter registration and absentee ballot collection, Dkt. 27 at 37, are wrong and have been disagreed with by other district courts within this circuit and elsewhere. See Hargett, 400 F. Supp. 3d at 720 (voter registration is protected political conduct); Project Vote, 455 F. Supp. 3d at 698 (same); Browning, 863 F. Supp. 2d at 1158 (same). The Ninth Circuit also recently declined to reach and affirm the holding in Feldman v. Ariz. Sec. of State’s Office, 840 F.3d 1057, 1086 (9th Cir. 2016), a case relied on by Defendant, when it struck down a ballot collection law. Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1046 (9th Cir. 2020).
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Regulations that directly govern election-related political expression are subject to either strict or exacting scrutiny, not to review under the AndersonBurdick framework. See Hargett, 400 F. Supp. 3d at 722 (explaining that “the Supreme Court has applied ‘exacting scrutiny’—not Anderson-Burdick—to cases governing election-related speech rather than ‘the mechanics of the electoral process.”). The Organizing Ban involves the direct regulation of communication and political association, not electoral mechanics. See supra II.A.1. Accordingly, traditional First Amendment scrutiny applies.
b. The Absentee Ballot Organizing Ban is not narrowly tailored to serve a compelling government interest.
To withstand strict scrutiny, the Organizing Ban must be narrowly tailored to serve a compelling government interest. Citizens United, 558 U.S. at 340. To withstand exacting scrutiny, the Organizing Ban must have a substantial relationship with a “sufficiently important” governmental interest. Id. at 366–67; John Doe #1 v. Reed, 561 U.S. 186, 196 (2010) (“[T]he strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”). The Organizing Ban does not pass muster under strict or exacting scrutiny because neither bear any relation to a legitimate government interest.
Defendant argues that the Organizing Ban preserves the integrity of absentee voting (and prevents fraud) by increasing the likelihood that a voter will entrust her application with someone who is trustworthy and accountable. See Dkt. 27 at 40–
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41. This argument requires the Court to resolve a factual dispute—that is, whether a
registered voter is more or less trustworthy than an unregistered voter—which is
beyond the scope of a 12(b)(6) motion. Sims v. Mercy Hosp. of Monroe, 451 F.2d
171, 173 (6th Cir. 1971). And in any event, a voter still decides to entrust a stranger with delivering an application even if the stranger is the one who requests to do so.10
The Absentee Ballot Organizing Ban is insufficiently tailored to address the
State’s interest in preventing voter fraud as it targets the application process, not the
casting of ballots. Dkt. 17 ¶ 54. And there are robust laws protecting absentee voting.11 Michigan also “retains an arsenal of safeguards” to prevent voting fraud.
Buckley, 525 U.S. at 204. There are no fewer than seven Michigan criminal laws that
robustly address voting fraud, including laws that specifically target absentee voting
fraud. Amended Complaint, Dkt. 17 ¶ 55. This array of criminal statutes dramatically
diminishes the need for the Organizing Ban. See Buckley, 525 U.S. at 204–05
10 And Plaintiffs have not challenged the law’s requirement that a person returning an absentee ballot application provide his name, address, and date of birth, see Dkt. 17 ¶ 51, which allows the State to contact persons who have submitted absentee ballot applications, see Buckley, 525 U.S. at 196 (rejecting similar argument in favor of registration requirement for initiative petition circulators because the circulators were still ascertainable). 11 In particular, the process itself requires that a ballot will only be turned over in person directly to the voter or mailed to the address at which the voters is registered. Dkt. 17 ¶ 54. If a voter were to receive an absentee ballot that he, she, or they did not request, the voter could still vote in person at the polls and their absentee ballot would be cancelled. Id. Finally, a list of where and to whom absentee ballots were mailed is made public, so it can be reviewed by voters for accuracy. Id.
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(relying on alternatives also in place to prevent fraud including criminal penalties in striking down a restriction on political expression); Meyer, 486 U.S. at 427 (same). The Absentee Ballot Organizing Ban can withstand constitutional scrutiny.
(i) The Registration Requirement The requirement that only voters registered in Michigan can assist voters in submitting absentee ballot applications (other than family or household members) is subject to strict scrutiny because it prohibits only certain persons—individuals who are not registered to vote in Michigan—from engaging in core political expression. Laws that regulate expression differently based on the identity of the speaker are subject to strict scrutiny. See Citizens United, 558 U.S. at 340–41. Regardless, because the registration requirement directly regulates core political expression, see supra at II.A.1, it is, at a minimum, subject to exacting scrutiny. See id. at 366–67; Hargett, 400 F. Supp. 3d at 722.12 As discussed supra at II.A.2.b, the registration requirement is not fairly designed to serve any important government interest. The Supreme Court has already recognized as much in Buckley, when it struck down a Colorado law allowing only registered voters to circulate initiative petitions because it was likely to result in “speech diminution.” Id. at 193–94. There, the record reflected that there
12 But see Buckley, 525 U.S. at 207 (Thomas, J., concurring) (arguing that strict scrutiny applies even to laws that affect but do not directly regulate core political speech).
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were 400,000 voting eligible persons who were not registered to vote. Id. at 193. The Supreme Court therefore concluded that “[b]eyond question, Colorado’s registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions.” Id. at 183.
The impact is even more dramatic here. There are at least 750,000 persons who are eligible to vote but are not registered to vote residing in Michigan. Dkt. 17 ¶ 70. And there are, of course, millions of U.S. citizens who do not reside in Michigan. Some of them would participate in Plaintiffs’ efforts to encourage and assist voters to vote absentee but for the registration requirement. The registration requirement should suffer the same fate as the registration requirement in Buckley.
(ii) The Solicitation Ban The Absentee Ballot Organizing Ban also proscribes non-family or household members from soliciting or requesting to help a voter to return an absentee ballot application. Mich. Comp. Laws § 168.759(4), (5). This ban is subject to strict scrutiny because it operates differently based on the identity of the speaker, see Citizens United, 558 U.S. at 340–41, and because it is a content-based restriction on speech, Berger v. City of Seattle, 569 F.3d 1029, 1051–52 (9th Cir. 2009) (strict scrutiny applied to law that banned active solicitation of donations as a content-based restriction). See also Burson v. Freeman, 504 U.S. 191, 197 (1992) (ban on an entire subject is content-based and subject to strict scrutiny). The solicitation ban is further
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subject to strict scrutiny review because it proscribes political expression. Citizens United, 558 U.S. at 340, 366–67 (distinguishing between regulations that “impose no ceiling” on expression and “do not prevent anyone from speaking” from a ban on political expression; applying strict scrutiny to latter); Button, 371 U.S. at 429, 439. The solicitation ban also directly regulates core political expression, see supra at II.A.1, and is, at a minimum, subject to exacting scrutiny. See Citizens United, 558 U.S. at 366–67; Hargett, 400 F. Supp. 3d at 722.
The solicitation ban cannot survive either strict or exacting scrutiny review for the same reasons that undermine the Absentee Ballot Organizing Ban generally. See supra at II.A.2.b. In Button, the Supreme Court struck down a Virginia law that criminalized the NAACP’s efforts to “solicit” clients, that is, to inform parents and children of their rights to challenge segregation through litigation. 371 U.S. at 421, 434. The Court was in part concerned with the challenged law’s vagueness, see id. at 431–38, concerns that are also present here, see infra at II.B. But the Court also struck down the law because it prevented the NAACP from persuading others to action, thereby burdening the NAACP’s efforts to bring litigation, the organization’s chosen means for affecting change. Id. at 429–31, 437. Similarly, Michigan’s solicitation ban burdens Plaintiffs’ ability to persuade Michigan voters to vote by a convenient means, thereby burdening their ability to affect change through their chosen method, at the ballot box.
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c. Even if Anderson-Burdick applies, Plaintiffs have stated a claim.
To the extent this Court concludes that Anderson-Burdick provides the appropriate standard, (1) Plaintiffs have plausibly pleaded that the challenged statutes severely burden their rights and that Defendant has an insufficient justification to do so; and (2) Defendant has conceded that the challenged statutes “burden the right to speech and association,” Dkt. 27 at 6-7. The Court must evaluate the severity of the burden, which is a necessarily fact-based inquiry not suited for the motion-to-dismiss stage of the proceedings. Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (the extent of the burden is an intensely factual inquiry “requiring a full development of the record”). The Court must then weigh the burden against the necessity of Defendant’s stated interest. Because neither of the challenged provisions bears a sufficient relationship to fraud prevention, see supra II.A.b, Plaintiffs also prevail under Anderson-Burdick.13
B. Plaintiffs allege that the Absentee Ballot Organizing Ban is unconstitutionally vague.
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 with a third party or offers of assistance that do not explicitly involve a request. Dkt. 17 at 26–
13 The same is true for Plaintiffs’ claim that the Voter Transportation Ban violates Plaintiffs’ speech and associational rights (Count VI).
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27. Presumably an individual solicits or requests to assist a voter when he says, “May I return your absentee ballot application for you?” But what about if an individual tells a voter “I would be happy to return your absentee ballot application for you” or “I am returning your neighbor’s absentee ballot application” or “I am forbidden from ‘soliciting’ or ‘requesting’ to return your absentee ballot application, so I can’t ask you, but if you ask me then I would be happy to assist”? Although none can be banned under the First Amendment, see supra at II.A, it is not clear which, if any, the challenged provision permits. So even if the ban covers only a narrow band of conduct—that is, only formal, direct requests to assist—its imprecision chills a broader range of interaction. “There thus inheres in the statute the gravest danger of smothering all discussion” regarding the exercise of voter’s right to vote absentee. Button, 371 U.S. at 434.
Even if the solicitation ban had some permissible application, the solicitation ban’s language—which prohibits “solicit[ing] or request[ing] to return” an absentee ballot application, Mich. Comp. Laws § 168.759(4), (5)—is unconstitutionally vague. Any state criminal law that is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement” violates the Due Process Clause of the Fourteenth Amendment. See United States v. Johnson, 135 S. Ct. 2551, 2556 (2015) (applying the Due Process Clause of the Fifth Amendment to strike down a federal criminal law). When a
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criminal law effects political expression, the “standards of permissible statutory vagueness are strict.” Button, 371 U.S. at 432; id. at 438 (“Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.”). The solicitation ban does not pass muster under Due Process Clause void-forvagueness or First Amendment overbreadth and vagueness analysis.
Defendant argues that the conduct covered by “solicit” in the Organizing Ban is easily divined from the word’s ordinary meaning. Dkt. 27 at 36. But she fails to divulge the word’s ordinary meaning and ignores the fact that other courts have not found it to be so easily defined.14 The solicitation ban’s vagueness is particularly troublesome given the recent expansion of absentee voting rights to all Michigan voters. The 2020 general election will be the first federal general election where absentee voting is open to everyone. Dkt. 17 ¶ 49. Plaintiffs and others have a significant interest in educating voters about their new rights and increasing voter participation. Dkt. 17 ¶ 59. Engaging voters in their constituencies and encouraging those voters to exercise political power through voting is key to Plaintiffs’ mission. Dkt. 17 ¶¶ 8, 9, 35. But no organization is likely to ask persons to risk criminal
14 See, e.g., Shays v. Fed. Election Comm’n, 414 F.3d 76, 106 (D.C. Cir. 2005) (interpreting “solicit” to include so-called “winks, nods, and circumlocutions to channel money in favored directions”); Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 223 (1992) (holding that “solicitation” of a proscribed act included “any speech or conduct that implicitly invites” the proscribed act, “not just explicit verbal requests for” the proscribed act).
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sanction to educate voters about how to exercise their right to absentee vote. Dkt. 17 ¶¶ 25, 30. The solicitation ban will chill these important and constitutionally protected conversations. Button, 371 U.S. at 432; cf. Hargett, 400 F. Supp. 3d at 720. Nor is this a hypothetical concern. Dkt. 17 ¶¶ 17, 27.
C. Plaintiffs have sufficiently pleaded that the Voting Rights Act preempts the Absentee Ballot Organizing Ban
Section 208 of the Voting Rights Act preempts the Absentee Ballot Organizing Ban because it prohibits voters with limited English proficiency or some disability from receiving assistance from persons of their choice. Dkt. 17 ¶¶ 71–77 (Count IV). The Absentee Ballot Organizing Ban (1) completely bars certain individuals from providing voters with assistance and (2) categorically prohibits persons who would otherwise be eligible from providing assistance to a voter if they asked to provide help to do so. Dkt. 17 ¶¶ 75–76.
Conflict preemption occurs in one of two ways: (1) when it is physically impossible to comply with state and federal law or (2) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98, 109 (1992) (internal quotation marks omitted). See infra at III.C. Both apply here.
Plaintiffs have alleged that it is impossible for the two laws to coexist. Section 208 expressly provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a
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person of the voter’s choice.” 52 U.S.C. § 10508. Full stop; no limits. But the Absentee Ballot Organizing Ban restricts who a voter may choose to assist them in voting.15
Plaintiffs have also alleged that the Absentee Ballot Organizing Ban stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Section 208 of the Voting Rights Act. “In recommending that Section 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.’” Dkt. 17 ¶ 74 (quoting S. Rep. No. 97-417, at 62 (1982)). The Committee concluded that those voters “must be permitted to have the assistance of a person of their own choice.” Id. (emphasis added). By forcing voters covered by Section 208 to choose the person to assist them from a prescribed subset, the statute deprives voters of an opportunity to have the assistance of a person of their choice. This deprivation of choice stands as an obstacle to (1) protecting voters with disabilities and language barriers from discrimination at the polls and (2) ensuring that their right to vote will be protected.
15 Defendant’s motion does not contest that Section 208 applies to the absentee ballot application process, which is a necessary part of absentee voting. See Dkt. 17 ¶ 73.
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Defendant does not contest any of the factual assertions regarding Section 208 in the Amended Complaint, but baldly asserts that it does not conflict with the Absentee Ballot Organizing Ban. That is demonstrably incorrect. Plaintiffs Section 208 preemption allegations are plainly sufficient. III. Plaintiffs have stated a claim that the Voter Transportation Ban is
unconstitutional and preempted by federal law. Plaintiffs’ Amended Complaint asserts four claims challenging the legality of the Voter Transportation Ban, each of which “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” as to each those claims. Iqbal, 556 U.S. at 678. Accordingly, Defendant’s motion should be denied. A. Plaintiffs have alleged that the Voter Transportation Ban is
unconstitutionally vague and overbroad. The Voter Transportation Ban, Mich. Comp. Law. § 168.931(1)(f), makes it a misdemeanor to “hire a motor vehicle” to transport voters to the polls unless those voters are “physically unable to walk.” Plaintiffs allege that what the statute allows is unclear, Dkt. 17 ¶ 81, and Defendant’s two motions only underscore that point. Defendant correctly states that the vagueness doctrine exists “to ensure that both those who enforce a statute and those who must comply with it know what is prohibited.” Dkt. 27 at 34. Despite having ample opportunity to do so, Defendant has not yet in this litigation defined what it means to “hire a motor vehicle” or cause a motor vehicle to be hired. Instead, Defendant, the State’s top law enforcement
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official lists activities that she believes the Voter Transportation Ban does not prohibit. Dkt. 27 at 45 (paying for expenses); Dkt. 27 at 49 (paying for gas); Dkt. 27 at 41 (using company or personal vehicles driven by employees or volunteers);; Dkt. 27 at 49 (provide free rides to the polls).
Although Defendant asserts that Plaintiffs’ concerns are “not rooted in a reasonable reading of the statute,” Dkt. 27 at 47, it is difficult to read the plain language of the Voter Transportation Ban and understand how Defendant’s professed interpretation of the statute is any more reasoned than Plaintiffs’ concerns. These creative approaches to statutory interpretation do not clarify the ambiguities in the law. Because Defendant provides no citation for these pronouncements or reasoning behind them, it is unclear (1) how she reached these conclusions; (2) if she is correct; (3) how Plaintiffs or anyone who seeks to transport voters to the polls would know what is and is not allowed; and (4) how the county prosecutors tasked with enforcing the Voter Transportation Ban would know what is and is not prohibited. Given that the Attorney General has not even provided a formal opinion regarding her interpretation of the statute,16 it is entirely unclear how citizens facing
16 Even if she had, such an opinion would not be binding on the 83 county prosecutors spread throughout Michigan, each of whom has his or her own statutory responsibilities to interpret and to enforce the statute. Some might approach that task with creativity equal to the Attorney General’s; others might take a more literal interpretation of the statutory text. Citizens are left to a constitutional coin flip in evaluating their legal risk.
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the threat of criminal prosecution are to locate, much less understand, this creative statutory interpretation. Plaintiffs have stated a claim.
B. Plaintiffs have alleged that the Voter Transportation Ban is an unconstitutional infringement of First and Fourteenth Amendment speech and association rights.
Plaintiffs have stated a claim that the Voter Transportation Ban violates their First and Fourteenth Amendment right to engage in political expression. Defendant argues that (1) the conduct affected by the Organizing Ban is not protected by the First Amendment and (2) the State’s interest in preventing undue influence on voters outweighs any burden posed by the law. Defendant is wrong on both counts.
1. The Voter Transportation Ban regulates political expression. The Voter Transportation Ban regulates political expression protected by the First Amendment in two ways. First, the Voter Transportation Ban regulates political expression because it limits political spending; that is, the Transportation Ban imposes an unconstitutional $0 spending limit on transporting voters to the polls. Dkt. 17 ¶ 44. The act of transporting voters to the polls is a recognized element of voter registration and get-out-the-vote drives. E.g., 11 C.F.R. § 114.4(d)(1) (“Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration.”). And as now-Justice Kavanaugh noted in Emily’s List v. Fed. Election Comm’n, people “are entitled to spend and raise unlimited money for those activities.” 581 F.3d 1, 16 (D.C. Cir. 2009) (referring to
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“advertisements, get-out-the-vote efforts, and voter registration drives”). Because it is an element of get-out-the-vote efforts, the act of spending money to transport voters to the polls is political speech protected by the First Amendment. See id.; see also Valeo, 424 U.S. at 23 (noting that “expenditure ceilings impose . . . severe restrictions on protected freedoms of political expression and association”).
Second, it regulates rides-to-the-polls efforts. Organized rides-to-the-polls efforts are a common organizing activity for political organizations who seek to encourage political activity. Dkt. 17 ¶ 35. The conduct regulated by the Voter Transportation Ban is protected political expression under the same body of case law that applies to the Absentee Ballot Organizing Ban. See supra at II.A.
2. The Voter Transportation Ban is not sufficiently related to any government interest. a. The Voter Transportation Ban is not closely drawn to serve a cognizable anticorruption interest.
A long line of Supreme Court precedent holds that any regulation of political spending must be “closely drawn to serve a cognizable anticorruption interest.” Emily’s List, 581 F.3d at 18 (collecting cases). The Voter Transportation Ban’s regulation of political spending must meet this standard.
If the Voter Transportation Ban contains any anticorruption element, it is not apparent on its face or in its reach. The Voter Transportation Ban does not prohibit a person from transporting voters to the polls; it simply prohibits expenditures on
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such activities. And under the Defendant’s interpretation of the law, a private bus company would be able to freely exercise its First Amendment rights by directing its drivers to use its vehicles to transport thousands of Michigan voters to the polls, but Plaintiffs or any other person or entity would be unable to hire that same private bus company to perform the exact same service. See Dkt. 27 at 51.
There is no evidence to suggest that paying drivers, renting cars, or otherwise paying money to convey voters to the polls would contribute to corruption any more or less than using employee or volunteer drivers. Cf. Meyer, 486 U.S. at 426 (refusing to accept unsupported allegation that paid petition circulators are any more likely to engage in corrupt behavior than a volunteer who is motivated entirely by an interest in the outcome). Accordingly, Plaintiffs have stated a claim that the Transportation Ban operates as an impermissible limit on political spending.
b. The Voter Transportation Ban does not bear a substantial relationship to a sufficiently important government interest.
Because get-out-the-vote efforts including rides-to-the-polls are protected political expression, the Voter Transportation Ban is subject to, at a minimum, exacting scrutiny. See Citizens United, 558 U.S. at 366–67; Meyer, 486 U.S. at 420; Buckley, 424 U.S. at 25, 44–45; Hargett, 400 F. Supp. 3d at 722. Under exacting scrutiny, the Transportation Ban must bear a substantial relationship to a sufficiently important government interest. See supra II.A.2.b.
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Defendant argues that the Transportation Ban is justified by the State’s interest “in protecting voters from undue influence, which helps preserve the integrity of Michigan’s elections.” Dkt. 27 at 47–48. Specifically, the State argues, the Ban prevents “‘quid pro quo’ arrangements that may occur when money is exchanged and voters might perceive that they are being offered something of value in exchange for a vote in favor of the candidates or proposals supported by the individual or organization who hired the transportation.” Id. at 49.
The Voter Transportation Ban is not substantially related to preventing quid pro quo corruption, or to preventing the exercise of “undue influence” on voters. The Transportation Ban is both overinclusive and underinclusive to achieve these goals. On the one hand, the Voter Transportation Ban does not prohibit providing free transportation to voters, which confers a benefit of value on those voters (transportation). And, according to Defendant, the law does not even prohibit paying for aspects of voter transportation. See supra at III.A. On the other hand, the law bans any hired transportation to the polls even if the ride is not contingent on (or even offered in relation to) support for a particular candidate or issue.
The State’s interest in achieving its stated goals through the Voter Transportation Ban is also lessened by other criminal provisions that explicitly cover the conduct it is seeking to prevent. See Buckley, 525 U.S. at 204–05 (relying on alternatives also in place to prevent fraud including criminal penalties in striking
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down a restriction on political expression); Meyer, 486 U.S. at 427 (same). Specifically, Michigan Law makes it a crime to enter into a quid pro quo arrangement with a voter, Mich. Comp. Laws § 168.932(a), or to promise or receive something of value for deciding for whom to vote, id. § 168.931(1)(a), (b).
Plaintiffs have alleged that the Transportation Ban poses a significant burden on rides-to-the-polls efforts. Because options available to organizers of rides to the polls are limited in Michigan by the law, the number of voters with whom these organizers can transport is necessarily diminished; the opportunities for political engagement and interaction is therefore also diminished. Dkt. 17 ¶¶ 24, 38, 92. The Supreme Court has consistently held that diminished opportunities for political expression are unconstitutional. In Meyer, the Supreme Court struck down a law that made it a felony to pay circulators of initiative petitions. 486 U.S. at 416. In Buckley, the Supreme Court struck down a law that only allowed registered voters to circulate initiative petitions. 525 U.S. at 193. In both cases, the Supreme Court reasoned that the challenged laws would diminish political expression by lessening the pool of people available to assist the proponents of initiatives. Buckley, 525 U.S. at 194; Meyer, 486 U.S. at 423. The same reasoning applies here. Plaintiffs have stated a claim that the Transportation Ban is an impermissible burden on expressive activity.
C. Plaintiffs have alleged that Federal law preempts the Voter Transportation Ban.
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Finally, and in any event, the Voter Transportation Ban’s spending limitation of $0 applies to elections involving federal candidates and stands in stark contrast with federal regulations that expressly permit corporations to spend money to transport voters to polls. 11 C.F.R. § 114.3(c)(4)(i); 11 C.F.R. § 114.4(d)(1). The Voter Transportation Ban is therefore both expressly and impliedly preempted by the Federal Election Campaign Act (“FECA”) and its regulations, as pleaded in the Amended Complaint. See Dkt. 17 at ¶¶ 46-47, 94-97
1. FECA’s preemption provision and its accompanying regulation expressly preempt the Voter Transportation Ban.
“Express preemption exists where either a federal statute or regulation contains explicit language indicating that a specific type of state law is preempted.” State Farm Bank v. Reardon, 539 F.3d 336, 341–42 (6th Cir. 2008). FECA, which provides a uniform national regulation of political spending in federal elections, contains an express preemption provision that states, in relevant part, that “the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.” 52 U.S.C. § 30143.17
17 The Federal Elections Commission further defined the scope of that statute in a regulation. 11 C.F.R. § 108.7 (stating, among other things, that federal law supersedes state law concerning the “[l]imitation on contributions and expenditures regarding Federal candidates and political committees”).“[B]ecause it was tacitly approved by Congress, [§ 108.7] represents a valid interpretation of congressional
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FECA thus expressly supersedes state law regarding limitations on contributions and expenditures in federal elections. 52 U.S.C. § 30143; 11 C.F.R. § 108.7; see also Weber, 793 F. Supp. at 1452 (finding that § 108.7 is “probably the most persuasive evidence that [FECA’s preemption provision] was intended to preempt all state laws purporting to regulate congressional campaign expenditures”). The Voter Transportation Ban, by its plain language, forms a $0 spending limitation by criminalizing disbursements for providing transportation to the polls for all elections. Because the Voter Transportation Ban attempts to regulate permissible expenditures in federal elections, it is expressly preempted.
2. The Voter Transportation Ban is impliedly preempted. FECA’s regulations that permit corporations to transport voters to the polls impliedly preempt the Transportation Ban through conflict preemption. Courts determine whether conflict preemption exists on a case-by-case basis, looking at the entire federal statutory scheme to determine whether the challenged state law serves as “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). “A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach this goal.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987).
intent” regarding FECA’s preemptive scope. Weber v. Heaney, 793 F. Supp. 1438, 1452 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993).
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Here, two federal regulations promulgated pursuant to FECA expressly permit disbursements to provide transportation to the polls for voters. 11 C.F.R. § 114.3(c)(4)(i) (permitting corporations to make disbursements to provide transportation to the polls for certain employees); id. § 114.4(d)(1) (permitting corporations to make disbursements to provide transportation to the polls for the general public). Although the text of these regulations permits corporations to “provide” transportation, it does so in the context of making “disbursements,” that is, spending money, to provide these services.
These federal regulations further FECA’s purpose of “insur[ing] the integrity of the election process by regulating the critical aspects of campaigning and campaign funding, and by opening up the whole area to informed scrutiny by the electorate.” Gifford v. Congress, 452 F. Supp. 802, 805 (E.D. Cal. 1978). These regulations are a part of the system Congress and the FEC created to establish rules regarding permissible monetary disbursements and the reporting of such disbursements. And “even though federal law merely permit[s] but d[oes] not compel” payment for the transportation of voters, Ass’n of Banks in Ins., Inc. v. Duryee, 270 F.3d 397, 404 (6th Cir. 2001), the Voter Transportation Ban is preempted because it is an obstacle to the accomplishment of federal objectives.18
18 See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373–74 (2000) (state law restricting ability to conduct trade with Burma conflict preempted because
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The evenhanded application and equalized availability of these rules to all federal elections across the country not only provide for transparency and integrity, but also promote the appearance of fairness in both intra- and interstate federal elections (that is, federal legislative elections and the presidential election). If Michigan’s Voter Transportation Ban is allowed to stand, Plaintiffs and any other person will not be able to pay to provide transportation for voters to the polls on Election Day 2020. But it will be perfectly legal for Plaintiffs and any other person to engage in that act in the neighboring states of Wisconsin, Indiana, and Ohio. IV. Plaintiffs have stated a claim that the challenged laws unduly burden the
fundamental right to vote. Plaintiffs allege, in Counts III and VII, that the Absentee Ballot Organizing Ban and the Voter Transportation Ban burden the fundamental right to vote. To determine whether a challenged election law places an undue burden on the fundamental right to vote, courts apply the Anderson-Burdick test. The Anderson-Burdick test is a flexible standard that weighs “the character and magnitude of the asserted injury to the rights protected by the First and
it posed an obstacle to federal statute imposing sanctions on Burma); Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 881 (2000) (state law requiring certain in-car safety restraints conflict preempted because it posed an obstacle to federal objective of giving car manufacturers an option of using a “variety and mix” of restraints); Felder v. Casey, 487 U.S. 131, 153 (1988) (state law imposing certain requirements on plaintiffs seeking relief against state officials conflicted with Section 1983’s objective and was preempted).
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Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (emphases added) (internal quotation marks omitted). The more severe the burden, the more severe the scrutiny. But even if the law burdens voting rights only minimally, the state’s rationale for that burden must withstand some level of scrutiny. Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016).
Plaintiffs have made factual allegations that the Absentee Ballot Organizing Ban and Voter Transportation Ban burden the fundamental right to vote. Dkt. 17 ¶¶ 4-5, 38, 66, 69, 70, 77, 90, 92. Plaintiffs have also alleged that the challenged provisions bear no relation to important or compelling government interests. Dkt. 17 ¶¶ 4, 43, 54, 64, 68, 85, 87–88, 91. On a motion to dismiss, these plausible allegations must be taken as true. The amended complaint “contain[s] sufficient factual matter, accepted as true, to state [claims] to relief that [are] plausible on [their] face.” Iqbal, 556 U.S. at 678 (2009) (internal quotation marks omitted).
Indeed, Defendant has conceded that the challenged provisions burden the right to vote. Dkt. 27 at 7 (asserting that “The [Absentee Ballot Organizing Ban] only minimally burden[s] the right to vote” and “The [Voter Transportation Ban]
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only minimally burdens the right to vote”). In light of these concession, the Court

must, at a minimum, consider evidence regarding the severity of the burden. See,

e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (the extent of the

burden is an intensely factual inquiry “requiring a full development of the record”).

The Court must then weigh that evidence against the State’s precise asserted interests

in the challenged provisions. Because this cannot be accomplished with only the

amended complaint and the motion to dismiss, dismissal at this stage is

inappropriate.

CONCLUSION

Plaintiffs respectfully submit that the Court should deny Defendant’s motion

to dismiss.

Dated: March 2, 2020

Respectfully submitted,

Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that I have sought ex parte leave from the court to file a brief in excess of 25 pages. Local Rule 7.1(d)(3).
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 41 filed 03/03/20 PageID.788 Page 1 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE JUDGE R. STEVEN WHALEN
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION
FOR PRELIMINARY AND PERMANENT INJUNCTION

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TABLE OF CONTENTS

PAGE

CONTROLLING OR MOST APPROPRIATE AUTHORITY ..............................iv
INTRODUCTION ....................................................................................................1
ARGUMENT ............................................................................................................1
I. The Court has jurisdiction. ...................................................................1
II. The Absentee Ballot Organizing Ban claims are meritorious. ............1
A. The Absentee Ballot Organizing Ban is vague and overbroad. ..................................................................................1
B. The Absentee Ballot Organizing Ban regulates election-related speech and cannot withstand any level of scrutiny. .................................................................................2
1. The Absentee Ballot Organizing Ban regulates speech. .............................................................................2
2. The restrictions cannot withstand constitutional scrutiny. ...........................................................................2
C. The Absentee Ballot Organizing Ban burdens the right to vote.........................................................................................3
D. The Absentee Ballot Organizing Ban is preempted. .................4
III. The Voter Transportation Ban claims are meritorious.........................5
A. The Voter Transportation Ban is vague.....................................5
B. The Voter Transportation Ban cannot withstand scrutiny. ......................................................................................5
C. The Voter Transportation Ban burdens the right to vote. ............................................................................................6
D. The Voter Transportation Ban is preempted. ............................6
IV. The remaining factors favor Plaintiffs. ................................................7

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CASES

TABLE OF AUTHORITIES

PAGE

Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................................................................4
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)..............................................................................................3
Buckley v. Valeo, 424 U.S. 1 (1976)..................................................................................................6
Burdick v. Takushi, 504 U.S. 428 (1992)..............................................................................................4
Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009)..................................................................................5
Meyer v. Grant, 486 U.S. 414 (1996)..........................................................................................3, 6
Mich. Beer & Wine Wholesalers Ass’n v. Att’y Gen., 370 N.W.2d 328 (Mich. Ct. App. 1985)...............................................................5
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007)..............................................................................................7
Shays v. Fed. Election Comm’n, 414 F.3d 76 (D.C. Cir. 2005)................................................................................1
Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214 (1992)..............................................................................................1
STATUTES
52 U.S.C. § 10508......................................................................................................4
52 U.S.C. § 30143......................................................................................................6
Mich. Comp. Law § 168.759(5).................................................................................2
Mich. Comp. Laws § 168.759(8) ...............................................................................2

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CASES

TABLE OF AUTHORITIES

PAGE

Mich. Comp. Law § 168.931(b)(i).............................................................................6 OTHER AUTHORITIES 11 C.F.R. § 108.7 .......................................................................................................6 11 C.F.R. § 114.4(d)(1)..............................................................................................7

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) Buckley v. Am. Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) Buckley v. Valeo, 424 U.S. 1 (1976) Shays v. Fed. Election Comm’n, 414 F.3d 76 (D.C. Cir. 2005) Emily’s List v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009) Statutes and Regulations Michigan Compiled Laws § 168.759 Michigan Compiled Laws § 168.931 52 U.S.C. § 10508 52 U.S.C. § 30143 11 C.F.R. § 108.7 11 C.F.R. § 114.3 11 C.F.R. § 114.4
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INTRODUCTION The Court should enjoin these unconstitutional statutes. Defendant acknowledges that the Absentee Ballot Organizing Ban prohibits political speech and restricts the pool of individuals who can assist voters with their absentee ballot applications. Her (new) interpretation of the Voter Transportation Ban only highlights its vagueness, overbreadth, and unconstitutionality.
ARGUMENT I. The Court has jurisdiction.
Defendant’s jurisdictional arguments here are identical to those she raised in her motion to dismiss and they fail for the same reasons. Dkt. 40 at 15–28. II. The Absentee Ballot Organizing Ban claims are meritorious.
A. The Absentee Ballot Organizing Ban is vague and overbroad. Defendant argues that the “conduct” prohibited by the Absentee Ballot Organizing Ban “is clear,” based on some undisclosed “ordinary, contemporary, and common meaning[]” of the word solicit. Dkt. 30 at 31.1 It remains unclear however,
1 Other courts have not found the term so easily defined. See, e.g., Shays v. Fed. Election Comm’n, 414 F.3d 76, 106 (D.C. Cir. 2005) (interpreting “solicit” to include so-called “winks, nods, and circumlocutions to channel money in favored directions”); Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 223 (1992) (“solicitation” included “any speech or conduct that implicitly invites” the proscribed act, “not just explicit verbal requests for” the proscribed act).
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for both the public and law enforcement, what is considered solicitation. This lack of clarity chills protected conduct, for Plaintiffs and others. Dkt. 22-1 at 23–25.2
B. The Absentee Ballot Organizing Ban regulates election-related speech and cannot withstand any level of scrutiny. 1. The Absentee Ballot Organizing Ban regulates speech.
Defendant argues the Absentee Ballot Organizing Ban restricts only unprotected conduct in the form of returning an absentee ballot application. But she expressly acknowledges that the Ban directly regulates, and indeed outlaws, speech: “these statutes prohibit a person from asking to return an AV ballot application.” Dkt. 30 at 31 (emphasis added). That request is protected political activity, directly involving voting and information about candidates or ballot measures. Defendant does not contest this point. Dkt. 22-1 at 22–23.
2. The restrictions cannot withstand constitutional scrutiny. When a challenged law implicates protected speech, it must withstand either strict or exacting scrutiny, but the Absentee Ballot Organizing Ban does neither. Defendant asserts that the Absentee Ballot Organizing Ban’s restrictions are based on its “important regulatory interest in protecting the integrity and security of the [absentee voting] ballot process.” Dkt. 30 at 36. But Defendant fails to address
2 Defendant also ignores that it is a misdemeanor to make a false statement on the absentee ballot application, Mich. Comp. Laws § 168.759(8), which includes a certification that the individual returning the application “did not solicit or request to return the application,” id. §168.759(5).
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how the ban is related, in any way, to this interest. She provides no evidence that a voter being asked by someone who is a non-family or household member (who may not be a stranger) poses a greater risk of fraud than a voter making an affirmative request of that same person. Nor does Defendant explain why a registered Michigan voter is more trustworthy than an unregistered Michigan citizen. These unsupported assertions are insufficient to support Defendant’s purported interest. See Meyer v. Grant, 486 U.S. 414, 426 (1996) (rejecting unsupported allegation that paid petition circulators are more likely to engage in corrupt behavior than volunteers).
Moreover, Defendant fails to even address that the Absentee Ballot Organizing Ban’s registered-voter requirement is nearly identical to the one the Supreme Court struck down in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). In fact, Defendant’s justification here is identical to the justification the Court rejected in Buckley—the desire to follow up with individuals who return the application if questions arise. Id. at 196. But, as in Buckley, that interest is served by the certification requiring the person returning the application to provide their name, birth date, and address. Id. (finding certification “has an immediacy, and corresponding reliability” voter registration lacks).
C. The Absentee Ballot Organizing Ban burdens the right to vote. Defendant concedes that the Absentee Ballot Organizing Ban at least “minimally burden[s] the right to vote.” Dkt. 30 at 33. The court must weigh the
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magnitude of that burden “against the precise interests put forward by the State as justifications for the burden imposed by its rule,” considering “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quotation marks omitted). Regardless of the burden’s magnitude, the court “must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). The burden on the right to vote here is severe, but even if it were minimal, the ban would be unconstitutional. Defendant does not address how the registered-voter requirement or prohibition on asking to return an application are connected to a legitimate government interest, let alone what makes them necessary.
D. The Absentee Ballot Organizing Ban is preempted. Section 208 of the Voting Rights Act expressly provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” 52 U.S.C. § 10508 (emphasis added). Full stop. Defendant concedes that the Absentee Ballot Organizing Ban restricts individuals who (a) request to return absentee ballot applications, or (b) are not registered Michigan voters, from returning absentee ballot applications. Dkt. 30 at 31, 33. Michigan voters covered by Section 208 are thus denied the assistance of a person of their choice. Because the laws cannot coexist, the Voting Rights Act preempts the Absentee Ballot Organizing Ban.
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III. The Voter Transportation Ban claims are meritorious. A. The Voter Transportation Ban is vague. Defendant’s interpretation of the Voter Transportation Ban only underscores
its vagueness: Defendant contends the statute permits Plaintiffs to “spend any amount of money to transport voters to elections so long as the transportation is not a ‘quid pro quo’ for the voters’ support.” Dkt. 30 at 45. But the statutory text cannot and does not bear that construction. Moreover, this new interpretation does not appear in any Attorney General opinions providing guidance for the public or law enforcement, and even if it did, it would not carry the force of law. Mich. Beer & Wine Wholesalers Ass’n v. Att’y Gen., 370 N.W.2d 328, 331 (Mich. Ct. App. 1985).
B. The Voter Transportation Ban cannot withstand scrutiny. 1. The Voter Transportation Ban regulates political expression.
Defendant asserts that driving people to the polls is unprotected conduct, ignoring that organizations that work to transport voters to the polls are part of a common and critical organizing tactic for political and advocacy organizations that seek to encourage voters to participate. Often these efforts are part of a strategy to convince and assist individuals with exercising their fundamental right to vote and build political strategy, which is core political expression. Dkt. 22-1 at 36–37. Indeed, spending money on get-out-the-vote efforts like transporting voters to the polls is itself political speech protected by the First Amendment. Emily’s List v. Fed.
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Election Comm’n, 581 F.3d 1, 16 (D.C. Cir. 2009); see Buckley v. Valeo, 424 U.S. 1, 23 (1976).
2. Defendant fails to justify the Voter Transportation Ban. Defendant’s sole justification for the Voter Transportation Ban is to avoid a quid pro quo transaction. But Defendant is curiously silent about the many laws that already address quid pro quo arrangements in voting. E.g., Mich. Comp. Law § 168.931(b)(i). In addition, there is no evidence to suggest that paying drivers, renting cars, or otherwise paying money to convey voters to the polls would contribute to corruption any more or less than using employee or volunteer drivers.3 C. The Voter Transportation Ban burdens the right to vote. Defendant concedes the Voter Transportation Ban at least minimally burdens the right to vote, and her justification for this burden fails for the same reason she cannot justify the burden on speech or political expression. D. The Voter Transportation Ban is preempted. The Federal Election Campaign Act (“FECA”) contains an express preemption provision, 52 U.S.C. § 30143, which is further defined by regulation, 11 C.F.R. § 108.7. Defendant completely fails to address the text, let alone the scope, of FECA’s express preemption provision, addressing only conflict preemption.
3 Cf. Meyer, 486 U.S. at 426 (refusing to accept unsupported allegations that paid petition circulators are more likely to engage in corrupt behavior than a volunteer motivated by an interest in the outcome).
-6-

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And even that limited analysis is flawed. Defendant argues that the Voter

Transportation Ban allows “providing transportation” under 11 C.F.R. § 114.4(d)(1).

But the words “provide transportation” appear in regulations relating exclusively to

disbursements. That is, FECA allows the spending of money to provide

transportation. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,

666 (2007) (holding words of a statute must be read in their context).

IV. The remaining factors favor Plaintiffs.

While Plaintiffs will be irreparably harmed absent an injunction, Defendant

will be unaffected, a point she concedes by arguing only that the State is harmed

when an existing law cannot be enforced.

Dated: March 3, 2020

Respectfully submitted,

Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

-7-

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CERTIFICATE OF SERVICE I hereby certify that on March 3, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that this reply brief complies with the page limit for reply briefs. Local Rule 7.1(d)(3).
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 44 filed 03/09/20 PageID.840 Page 1 of 19

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,
Plaintiffs,
v
DANA NESSEL, in her official capacity as the ATTORNEY GENERAL OF THE STATE OF MICHIGAN,

No. 19-13341
HON. STEPHANIE DAWKINS DAVIS
MAG. R. STEVEN WHALEN
DEFENDANT’S REPLY BRIEF IN SUPPORT OF THE MOTION
TO DISMISS AMENDED COMPLAINT

Defendant.

__________________________________/

Sarah S. Prescott (P70510)

Kevin J. Hamilton

Attorney for Plaintiffs

Attorney for Plaintiffs

105 East Main Street

1201 Third Ave, Suite 4900

Northville, Michigan 48168

Seattle, Washington 98101

248.679.8711

206.359.9741

Heather S. Meingast (P55439)

Marc E. Elias

Erik A. Grill (P64713)

Attorney for Plaintiffs

Assistant Attorneys General

607 Fourteenth St, NW

Attorneys for Defendant

Washington, DC 20005

P.O. Box 30736

202.628.6600

Lansing, Michigan 48909

517.335.7659

/

DEFENDANT’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT

Case 4:19-cv-13341-SDD-RSW ECF No. 44 filed 03/09/20 PageID.841 Page 2 of 19
TABLE OF CONTENTS Page
Table of Contents .......................................................................................................2 Index of Authorities ................................................................................................... i Concise Statement of Issues Presented .................................................................... iii Argument.................................................................................................................... 1
A. Plaintiffs fail to demonstrate that a “diversion of resources” grants them standing to bring their claims. ...........................................1
B. The Absentee Ballot Organizing Plan statutes are constitutional.........5 C. The Voter Transportation Ban statute is constitutional. .......................7 Conclusion and Relief Requested ............................................................................13 Certificate of Service ...............................................................................................14

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INDEX OF AUTHORITIES Page
Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................2, 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................2, 3 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...........................................................9 Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) ..................... 7, 12 Burson v Freeman, 504 U.S. 191 (1992).................................................................12 Chandler v. Muskegon Co., 652 N.W.2d 224 (Mich. 2002)..................................6, 8 Dep't of Envtl. Quality v. Worth Twp., 814 N.W.2d 646 (2012) ...............................9 Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228
(1989) .................................................................................................................... 12 Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) ...................................4 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...................................................9 Green Party v. Hargett, 700 F.3d 816 (6th Cir. 2012) ..............................................8 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)............................................3 Mason Co. v. Dep’t of Community Health, 820 N.W.2d 192 (Mich. Ct. App.,
2011) .......................................................................................................................9 McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003).................................12 MD Marinich, Inc. v. Michigan Nat. Bank, 484 N.W.2d 738 (1992)........................9 Mote v. City of Chelsea, 284 F. Supp. 3d 863 (E.D. Mich 2019)..............................4 Zynda v. Arwood, 175 F. Supp. 3d 791 (E.D. Mich. 2016) .......................................4
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Statutes Mich. Comp. Laws § 14.30......................................................................................11 Mich. Comp. Laws § 14.32......................................................................................11 Mich. Comp. Laws § 168.759....................................................................................6 Mich. Comp. Laws § 168.931............................................................................. 7, 10 Mich. Comp. Laws § 8.3a ..........................................................................................8 Mich. Comp. Laws § 168.759....................................................................................6
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether Plaintiffs’ complaint should be dismissed because the lack
standing to challenge Michigan’s Election Laws that have not been applied to them, their members, or people with whom they have any special relationship? 2. Whether Plaintiffs’ complaint should be dismissed because it fails to state a claim as to the unconstitutionality of these statutes?
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ARGUMENT Time and space do not permit the Attorney General to respond to all of Plaintiffs’ arguments regarding their eight-count complaint. But in reply, the Attorney General makes the following points. A. Plaintiffs fail to demonstrate that a “diversion of resources”
grants them standing to bring their claims. Plaintiffs argue that merely alleging that they will divert resources is sufficient to establish an injury-in-fact. (R. 40, Resp. Mot. to Dis., PageID #748). But the entirety of Plaintiffs’ allegations about the supposed diversion of their resources consist of a single paragraph in which they “are aware” of these Michigan statutes and “are expending and diverting additional funds and resources in GOTV, voter education efforts, mobilization, and turn out activities in Michigan, at the expense of its other efforts in Michigan, and for Priorities and Rise, at the expense of its efforts in other states, ” and that they “are required to expend additional resources and employee time to educate their employees, volunteers, and partners about the Voter Transportation Ban and the Absentee Ballot Organizing Ban to avoid exposing them to criminal prosecution.” (R. 17, Am. Cmplt., ¶24-25, PageID #98-99). Plaintiffs’ allegations are notably short on details. So minimal, they essentially reduce to a bare assertion that they are diverting resources because they say they are. This kind of general declaration is inconsistent with well-established
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constructions of Federal Rule 8. A complaint only survives a motion to dismiss if it contains sufficient factual matter to state a claim to relief that is plausible on its face under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). While Rule 8 does not require “detailed factual allegations,” it does demand more than unadorned conclusions. Iqbal, 556 U.S. at 678. The U.S. Supreme Court held that a pleading that offers “labels and conclusions” or a formulaic recitation of the elements of a cause of action will not do, nor will a complaint suffice if it tenders “naked assertions” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678.
Plaintiffs have repeatedly failed to make allegations showing—with any real clarity—how these two statutes are allegedly affecting their operations. For example, Priorities USA alleges that they have already committed to spend over $100 million on voter engagement in Michigan and other states. (R.17, ¶7, PageID #92). Similarly, Rise, Inc. already operated a volunteer network to engage in voter education. (R.17, ¶9, PageID #93). So, what diversion did these statutes supposedly require of them? Plaintiffs were already engaged in the activity they claim required a diversion of resources.
Alternatively, if their argument is that they were somehow required to expend more resources—how? The so-called transportation ban has been law for over a hundred years and has not substantively changed. Why would it suddenly
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require the expenditure of additional resources? Similarly, the AV ballot application statutes require no expenditure of funds, and it is not immediately obvious what additional resources would be required in order to comply with it.
Plaintiffs may argue that these answers would come out in discovery, but that does not excuse deficient allegations. Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal at 67879. If a naked conclusion that resources might be diverted were held to be sufficient to survive a motion to dismiss, it would validate exactly the kind of formulaic recitations Iqbal and Twombly caution against. More is required of a plaintiff than the kind of generalized declaration the Plaintiffs make here.
Plaintiffs’ resource-diversion arguments overstate and misapply the cases they cite. Plaintiffs cite primarily to Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), but in Havens, the Supreme Court’s reference to resources was as a consequence of the impairment of the organization’s operations:
If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOM’s ability to provide counseling and referral services for low- and moderate-income home-seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities -- with the consequent drain on the organization's resources -- constitutes far more than simply a setback to the organization's abstract social interests. Havens, 455 U.S. at 379 (emphasis added). Plaintiffs’ blanket allegations here offer no insight to any perceptible or demonstrable impairment of their operations.
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Also, as the Sixth Circuit noted in Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n.1 (6th Cir. 2014), the plaintiff organization in Haven sought damages—not an injunction as here—and damages are a classic basis for standing. And, Havens also involved an enforceable right to truthful information, and that is not a part of the action here. Fair Elections Ohio, 770 F.3d at 460 n.1. So, Havens does not support Plaintiffs’ standing.
Plaintiffs also cite to Mote v. City of Chelsea, 284 F. Supp. 3d 863, 887-888 (E.D. Mich 2019), but in that case, the Court recognized an injury in fact specifically where the organization’s executive director testified that resources have been diverted from its “usual mission.” Again, Plaintiffs allege they are already engaged in organization volunteers for GOTV and voter outreach. It cannot be a “diversion of resources” for an organization—having already undertaken to train their volunteers to interact with voters—to conform their training to existing law. As the Sixth Circuit held in Fair Elections Ohio, “[I]t is not an injury to instruct election volunteers about absentee voting procedures when the volunteers are being trained in voting procedures already.” Fair Elections Ohio, 770 F3.d at 459-460.
Plaintiffs’ citation to Zynda v. Arwood, 175 F. Supp. 3d 791 (E.D. Mich. 2016) is also inapt. In Zynda, the plaintiff organization (Sugar Law) alleged facts, attached affidavits, and provided receipts demonstrating how the organization’s
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resources were affected. Zynda, 175 F. Supp. 3d at 804-805. Sugar Law showed that the statute itself increased the number and burden of its cases. Id. Plaintiffs here make no such allegation or demonstration.
Last, Plaintiffs allege that they have standing because they have shown a credible threat of prosecution. But this “credible threat” is based upon the Attorney General’s defense of the constitutionality of the statutes in this lawsuit. (R. 17, PageID #754). This is circular logic—because Plaintiffs filed a lawsuit and the Attorney General moved to dismiss it, then they have standing to file the lawsuit? Under that reasoning, it would also follow that if Plaintiffs had not filed this lawsuit, then they would not have standing to file a lawsuit.
B. The Absentee Ballot Organizing Plan statutes are constitutional. Plaintiffs first argue that the Absentee Ballot Organizing Plan statutes prohibit or inhibit speech and must be analyzed under an exacting or strict scrutiny standard. (R. 40, Resp. to Mot. to Dismiss, PageID #760-764). Plaintiffs appear to agree that the act of delivering AV ballot applications to a clerk is not protected speech per se. (Id., PgID #760-761). Instead they focus on the front-end of the transaction—the interaction their volunteers may have with a voter. Here, it’s important to recall how narrow the statutes are—they simply prohibit a person
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from returning, offering to return, agreeing to return, or soliciting1 to return the voter’s AV ballot application to the clerk unless or before the voter first requests such assistance. Mich. Comp. Laws §§ 168.759(4)(6). Plaintiffs’ volunteers can speak with a voter about anything under the sun including explaining the voter’s rights to vote an AV ballot and even reading word-for-word the instructions on the application form, see § 759(6), so that a voter is fully apprised of his or her options for returning the application—including the option of having a registered elector return the form. The volunteer must simply wait to be asked by the voter for assistance in returning the application before the volunteer may offer such assistance.2 To the extent offering to assist a voter in returning his or her application veers more toward protected speech rather than toward less protected conduct, the volunteer’s speech is not prohibited—it is simply delayed.
As Plaintiffs note, to survive “exacting scrutiny” under Buckley v. Am. Constitutional Law Found., a law must be “substantially related to important
1 Under state law, when a term or phrase is not defined in a statute, Michigan courts may consult a dictionary to ascertain its commonly accepted meaning. Chandler v. Muskegon Co., 652 N.W.2d 224 (Mich. 2002). As used here, the ordinary meaning of the word “solicit” can be understood to mean “to approach with a request or plea” or “to make petition to: entreat.” See https://www.merriamwebster.com/dictionary/solicit. 2 There is no threat of criminal penalty unless the same person both distributes the AV ballot application to the voter and then improperly solicits and returns the voter’s application. Mich. Comp. Laws, § 168.759(8).
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governmental interests.” 525 U.S. 182, 202 (1999) (citation omitted). See also John Doe #1 v. Reed, 561 U.S. 186, 196 (2010) (“[T]he strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”). As explained in Defendant’s principal brief, the State has an important governmental interest in protecting voters and the AV ballot process from undue influence and manipulation. (R. 27, PgID #420-422). This important interest easily outweighs the minimal burden on the professed “speech rights” of Plaintiffs’ volunteers to offer to return voters’ AV ballot applications. Plaintiffs argue that the statutes are “insufficiently tailored to address the State’s interest in preventing voter fraud as it targets the application process, not the casting of ballots.” (R. 40, PgID #765) (emphasis in original). But this argument is shortsighted. Protecting against fraud in the actual voting of AV ballots necessarily requires protections in the process for requesting the AV ballot itself. The statutes withstand constitutional scrutiny even under an “exacting” review.
C. The Voter Transportation Ban statute is constitutional. Plaintiffs argue that § 931(f) is unconstitutionally vague and overbroad. This section provides, in relevant part, that “[a] person shall not hire a motor vehicle . . . or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election.” Mich. Comp. Laws § 168.931(f).
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A statute should not be struck as facially vague unless the plaintiff has “demonstrated that the law is impermissibly vague in all of its applications.” Green Party v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012)(citation omitted). Every reasonable construction must be resorted to to save a statute from unconstitutionality. Id. (citation omitted).
Plaintiffs mistakenly argue that the Attorney General has not offered any reasonable construction as to what § 931(f) means. (R. 40, PgID # 774-775). But in her principal brief, the Attorney General provided definitions for the key words “person,” “hire,” and “election.” (R. 27, PgID #425). See also Chandler v. Muskegon Co., 652 N.W.2d 224 (Mich. 2002) (When a term or phrase is not defined in a Michigan statute, resort to a dictionary to ascertain its commonly accepted meaning is permitted); see also Mich. Comp. Laws § 8.3a. And argued, based on statutory construction principles, that “[u]nder this provision, a person cannot engage the service of a vehicle for a fee to transport a voter to an election[.]” (R. 27, PgID #425). However, the provision does not preclude “a person from paying for expenses incurred in transporting a voter by vehicle so long as it does not amount to hiring for the service.” (Id., PgID #425-426). This is because Michigan’s campaign finance laws specifically contemplate that an “expenditure” might be made for transporting voters to the polls. See Mich. Comp. Laws § 169.206(1)-(2). This construction harmonizes and gives meaning to both
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state statutes. And, of course, the statute by its own terms does not prohibit a person from providing a voter with free transportation to an election. The words of the statute are understandable by a person of ordinary intelligence according to the common meaning of the words and are not vague.
With respect to Plaintiffs’ claims of facial overbreadth, the plain language of § 931(f) would appear to capture innocuous situations like that of a parent arranging and paying for an Uber to take a daughter at college to the polls, or a daughter arranging and paying for an Uber to take her low-income parent to the polls. But this is not what the Michigan Legislature intended. “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (citations omitted). Thus, the Court must consider any limiting construction of the statute that the Attorney General can present. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)).
As Defendant stated in her principle brief, § 931(f) is very old and has been modified. (R. 27, PgID # 424-425). Michigan courts consider changes in an act or statute in light of predecessor statutes and historical developments. See Dep't of Envtl. Quality v. Worth Twp., 814 N.W.2d 646, 654 (2012); Mason Co. v. Dep’t of Community Health, 820 N.W.2d 192, 199-201 (Mich. Ct. App., 2011); MD Marinich, Inc. v. Michigan Nat. Bank, 484 N.W.2d 738, 740 (1992). The current
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language of § 931(1)(f), which is remarkably similar to its enacted language in 1895, was separated from its surrounding provisions in the early 1900’s. But it was the surrounding provisions that gave context and meaning to what is now § 931(1)(f). (R. 27, PgID # 424-425). As is evident from the original enacted “for the purpose of” language, (R. 27, PgID # 424), the purpose of the transport prohibition is to protect voters against undue influence. Or more specifically, it is to prevent “quid pro quo” arrangements that may occur when money or services are exchanged and voters might perceive that they are being offered something of value in exchange for a vote in favor of the candidates or proposals supported by the individual or organization who hired the transportation.
Under this limiting construction, an individual or corporate body that hires transportation to convey voters to an election would not run afoul of § 931(1)(f)’s prohibition unless the service was provided to voters with the demand or expectation that voters will support candidates or proposals supported by the individual or corporate body that hired the transportation. Thus, parents who hire Uber drivers for their children at college, or churches paying drivers to take people to the polls, would not be subject to punishment if the transportation was provided with no strings attached, i.e., no requirement or expectation that the transported voters will support particular candidates or proposals. And, as noted above, the statute otherwise does not prohibit an individual or corporate body from making
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expenditures to transport voters by vehicle; it does not prohibit persons from providing voters with free transportation to an election; and it has no application to voters who are physically unable to walk to an election.3
Plaintiffs complain that ordinary citizens and the local prosecutors will have no way of knowing about this interpretation. (R. 40, PageID #775).4 But presumably if the Attorney General’s motion to dismiss is granted as to these claims (unless it is granted on a jurisdictional basis), the Court will enter an opinion and order setting forth the limiting construction as a basis for dismissal. The Court’s opinion is a public record, available to anyone. Further, the Attorney General would certainly provide Michigan’s local prosecutors with this Court’s opinion and order consistent with her duty to supervise their work. See Mich. Comp. Laws § 14.30 (“The attorney general shall supervise the work of, consult and advise the prosecuting attorneys, in all matters pertaining to the duties of their offices[.]”).
3 Defendant made these same arguments in her response in opposition to Plaintiffs’ motion for preliminary injunction filed February 18, 2020. (See R. 30, PageID #478-487). 4 Plaintiffs chastise Defendant for not rendering an opinion regarding her interpretation of this statute. (R. 40, PageID #775). But no state officer has requested her opinion. See Mich. Comp. Laws § 14.32 (“It shall be the duty of the attorney general . . . to give [her] opinion upon all questions of law submitted to [her] by the legislature . . . or by the governor . . . or any other state officer[.]”). And she cannot provide an “opinion” now because the policy of the Department is to deny such requests when there is pending litigation on the same subject matter.
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The remainder of Plaintiffs’ arguments as to § 931(f) must be viewed through the lens of the limiting construction. To the extent driving voters to elections includes elements of speech, the statute does not unconstitutionally restrict protected speech. As explained above, under § 931(1)(f), Plaintiffs can spend any amount of money to transport voters to elections so long as the transportation is not a “quid pro quo” for the voters’ support of particular candidates or ballot proposals supported by Plaintiffs. And prohibiting Plaintiffs from spending money to arrange quid pro quos is an important, if not compelling, State interest in protecting against corruption in elections. See, e.g., Buckley v. Valeo, 424 U.S. 1, 45 (1976) and McConnell v. Federal Election Comm'n, 540 U.S. 93, 204-206 (2003) (recognizing corruption as an important governmental interest supporting restrictions on spending for political speech). See also Burson v Freeman, 504 U.S. 191, 199 (1992) (citing Eu v. San Francisco County Democratic Cen Committee, 489 U.S. at 228, 229 (1989) (explaining that a State has a compelling interest in protecting voters from undue influence).
And any burden on a voter’s right to vote is likewise minimal. Again, any voter who cannot get to an election may utilize the AV ballot process, which minimizes any burden. (R. 27, PageID #428-429). Otherwise, a voter may receive rides from family, friends, or volunteers of organizations, including Plaintiffs, if the transportation is provided for free or, if paid for, without any intent to secure or
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unduly influence the voter’s vote. Moreover, Plaintiffs can incentivize volunteer

drivers by offering to cover their expenses, such as the cost of gas. Ultimately, any

secondary burden on voters, who are not the target of § 931(1)(f), is minimal.

And the State’s substantial government interest in preserving the integrity of

its elections and protecting voters against undue influence support the minimal

burden. See Burson, 504 U.S. at 199. Plaintiffs fail to demonstrate a likelihood of

success on the merits as to their First and Fourteenth Amendment claims.

CONCLUSION AND RELIEF REQUESTED For the reasons set forth above and in Defendant’s principal brief (R. 17),

the Court should grant Defendant Attorney General’s motion to dismiss.

Respectfully submitted,

Dated: March 9, 2020

s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

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CERTIFICATE OF SERVICE I hereby certify that on March 9, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439
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 Case 4:19-cv-13341-SDD-RSW ECF No. 46 filed 03/11/20 PageID.862 Page 1 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA,Rise,Inc., and the Detroit/Downriver Chapter ofthe A. Philip Randolph Institute,
Plaintiffs,
v.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN

Dana Nessel, in her official capacity as Attorney General ofthe State of Michigan,

Defendant.

REPLY BRIEF IN SUPPORT OF MOTION TO INTERVENE BY THE MICHIGAN REPUBLICAN PARTY AND THE REPUBLICAN NATIONAL
COMMITTEE Pursuant to Federal Rule Civil Procedure 24 and Local Rule 7.1(e), the
Michigan Republican Party ("MRP") and the Republican National Committee
("RNC")(collectively the "Applicants"),reply in support ofits Motion to Intervene
as party defendants in this case (R.33).
BUTZEL LONG,PC
By:/s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) Steven R.Eatherly(P81180) 150 W.Jefferson, Suite 150 Detroit, Michigan 48226 (313)225-7000 wilder@butzel.com eatherly@butzel.com

(DETROIT\000150960\0001\2045859.v3-3/1 1/20

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TABLE OF CONTENTS
INDEX OF AUTHORITIES CONCISE STATEMENT OF THE ISSUE PRESENTED CONTROLLING OR MOST APPROPRIATE AUTHORITY ARGUMENT I. APPLICANTS ARE ALLOWED TO INTERVENE AS A
MATTER OF RIGHT A. Applicants' motion to intervene is timely. B. Applicants have substantial legal interests. C. Defendant will not adequately protect Applicants' interests D. In the alternative, the Court should grant permissive intervention. CONCLUSION

Page ii iii iv 1
1 1 2 5 6 7

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INDEX OF AUTHORITIES

Cases

2018 U.S. Dist. LEXIS 136965(E.D. Mich. 2018); 2018 U.S. Dist. LEXIS 57813, at *2-.3 2

Bond v. U.S., 564 U.S. 211,218-19(2011)

4

Drake v. Obama,664 F.3d 774(9th Cir. 2011)

iv

Drake v. Obama,664 F.3d 774,782-84(9th Cir.2011)

3

Hunter v. Hamilton Cnty. Bd. ofElections,635 F.3d 219(6th Cir. 2011)

iv

Johnson,902 F.3d 572,580(6th Cir.2018)

2

League of Women Voters v. Johnson

iv, 2

League of Women Voters v. Johnson,902 F.3d 572(6th Cir. 2018)

iv

Libertarian Party ofMich. v. Johnson,No. 12-12782,2012 U.S. Dist. LEXIS 126096(E.D.

Mich. Sept. 5, 2012)

iv

Libertarian Party v. Johnson,No. 12-12782,2012 U.S. Dist. LEXIS 126096 at *3(E.D. Mich..5

Mich. State AFL-CIO v. Miller, 103 F.3d 1240(6th Cir. 1997)

iv

Mich. State AFL-CIO v. Miller, 103 F.3d 1240(6th Cir.1997)

4

Northland Family Planning Clinic v. Cox,487 F.3d 323(6th Cir.2007)

4

Providence Baptist Church v. Hillandale Comm.,425 F.3d 309, 315 (6th Cir.2005)

3

Purnell v. Akron,925 F.2d 941 (6th Cir. 1991)

iv

Purnell v. Akron,925 F.2d 941,950(6th Cir.1991)

1

Shays v. FEC,414 F.3d 76(D.C. Cir. 2005)

iv

Shays v. FEC,414 F.3d 76,85(D.C.Cir.2005); Nader v. FEC,725 F.3d 226,228(D.C.Cir.2013)

3

Rules

Fed. R. Civ. P. 24

iv

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Case 4:19-cv-13341-SDD-RSW ECF No. 46 filed 03/11/20 PageID.865 Page 4 of 12 CONCISE STATEMENT OF THE ISSUE PRESENTED
I. Whether the Court should grant Applicants' motion to intervene as a matter of right pursuant to Rule 24(a)(2), or in the alternative, by permissive intervention under Rule 24(b)(R.33).
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Cases Purnell v. Akron, 925 F.2d 941 (6th Cir. 1991) Shays v. FEC,414 F.3d 76(D.C. Cir. 2005) Drake v. Obama,664 F.3d 774(9th Cir. 2011) League of Women Voters v. Johnson,902 F.3d 572(6th Cir. 2018) Mich. State AFL-CIO v. Miller, 103 F.3d 1240(6th Cir. 1997) Libertarian Party of Mich. v. Johnson, No. 12-12782, 2012 U.S. Dist. LEXIS 126096(E.D. Mich. Sept. 5, 2012) Hunter v. Hamilton Cnty. Bd. ofElections,635 F.3d 219(6th Cir. 2011) Rules Fed. R. Civ. P. 24
iv
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ARGUMENT Because courts broadly construe the rules governing intervention "in favor of potential intervenors," Purnell v. Akron, 925 F.2d 941, 950 (6th Cir.1991), Applicants meet the liberal standard for intervention and should be allowed to intervene under either Rule 24(a)(2) or 24(b). I. APPLICANTS ARE ALLOWED TO INTERVENE AS A MATTER OF RIGHT A. Applicants' motion to intervene is timely. Plaintiffs filed their Amended Complaint 23 days before Applicants filed this motion.(R.17). Defendant's motion to dismiss was filed 9 days before this motion. (R.27). Briefing was not completed on Defendant's motion until after this motion was filed, and the Court has not ruled on the substantive merits of Defendant's motion.' Discovery has not begun. No scheduling order has been entered. A Rule 26(0 conference has not been held. Defendant points to no cases where intervention in the pre-discovery phase was not timely.2
Applicants sought permission to respond to Defendant's motion to dismiss and continue to seek permission to do so.(R.33,p.2). 2 This Court has held that an intervention motion filed two months after the complaint, while the case remained in the pleading stage, was timely. Live Nation Worldwide v. Hillside Prods., No. 10-11395, 2011 U.S. Dist. LEXIS 34405, at *1617(E.D. Mich.2011); U.S. v. Marsten Apts., 175 F.R.D.265,267(E.D.Mich. 1997) (holding timely intervention where "the suit is still in the pretrial stage, and although some discovery has been taken the case is not significantly close to trial").
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This case is distinguishable from cases cited by Plaintiffs in challenging timeliness.3 In League of Women Voters v. Johnson,the court refused to allow state legislators and several Congressmen to intervene in a redistricting challenge for comparable reasons. No. 17-14148, 2018 U.S. Dist. LEXIS 136965 (E.D. Mich. 2018); 2018 U.S. Dist. LEXIS 57813, at *2-3. The state legislators never appealed this ruling, but the Congressmen did. The Sixth Circuit held that the lower court abused its discretion in refusing intervention, Johnson, 902 F.3d 572, 580 (6th Cir.2018), finding the vague concerns upon which the court relied to be "cursory" and "unsupported by the record." Id. Thus, Johnson actually bolsters the case for intervention.
B. Applicants have substantial legal interests. Demonstrating the existence of a substantial interest "is not an onerous task." Coal. to Defend,240 F.R.D. at 375. A proposed intervenor"need not have the same
3 Coal. to Defend Affirm. Action v. Granhoim rejected an intervention motion filed after a time-sensitive cross-claim by a codefendant had already been resolved. 240 F.R.D. 368, 372 (E.D. Mich. 2006). Stupak-Thrall v. Glickman involved an intervention motion filed 7 months after plaintiffs' complaint, 5 months after plaintiffs' amended complaint, after discovery, and only 2 months before dispositive motions were due. 226 F.3d 467,473 (6th Cir.2000). There is no reason to fear the "intractable procedural mess that [the Seventh Circuit feared] would result" from having both the State Legislature and Attorney General claiming to represent the state's interests in Planned Parenthood of Wis. v. Kaul(non-binding case) because Applicants do not seek to join Defendant in representing the state's interests, but seek to protect their organizational interests, as well as those of Republican candidates and voters. 942 F.3d 793, 801 (7th Cir.2019).
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standing necessary to initiate a lawsuit." Providence Baptist Church v. Hillandale Comm.,425 F.3d 309,315 (6th Cir.2005).
Courts have recognized "competitive standing"—a higher bar than a proposed intervenor's substantial interest—when political parties or candidates have a substantial interest in preventing change to the structure of a competitive electoral environment.See Shays v. FEC,414 F.3d 76,85(D.C.Cir.2005);Nader v. FEC,725 F.3d 226,228(D.C.Cir.2013);Drake v. Obama,664 F.3d 774,782-84(9th Cir.2011) (citing multiple cases recognizing "competitor standing").4
Plaintiffs contend that the Shays and Nader plaintiffs had a substantial legal interest only "because the regulations ... challenge[d] ... unlawfully altered [the
competitive landscape]."(R.43, p.6 (emphasis in original)). Plaintiffs assume that
the challenged statutes are unconstitutional Applicants contend these are
constitutionally valid laws. If Applicants are correct, then Defendant's settlement or failure to adequately defend the challenged laws could result in Defendant exceeding
4 Applicants are not "afraid to include" practices prohibited by the challenged laws. (R.43, p.4). Applicants, who must run campaigns with limited resources, have a competitive interest in protecting against compulsion to expend those resources on practices that the Legislature has barred. Further, one specific behavior identified by Plaintiffs,"Michigan citizens ... driv[ing] eligible, lawful voters to the polls," does not appear barred by MCL 168.931(1)(f). The uncertainty this demonstrates counsels in favor of abstaining from deciding Plaintiffs' claims until a Michigan court can clarify the scope ofthe challenged Michigan election laws. See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011)(stating that Pullman abstention is appropriate "when state law is unclear and a clarification of that law would preclude the need to adjudicate the federal question.").
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her authority, usurping the legislative function, and illegally altering the competitive electoral environment. See No. 17-14148, ECF No. 235 ("[Secretary] Benson lacks the authority absent the express consent of the Michigan Legislature, which she lacks to enter into the Proposed Consent Decree."). Just as the Court should assume that Plaintiffs would be successful on their claims when assessing their standing, so too should the court assume that the challenged laws are valid when assessing Applicants' interests in maintaining the current legal structure of the competitive environment. Bond v. U.S., 564 U.S. 211, 218-19 (2011) (warning against the conflation ofthe standing inquiry and the merits ofthe claim).
Plaintiffs rely on NorthlandFamilyPlanning Clinic v. Cox,487 F.3d 323(6th Cir.2007)(R.43, p.7), but this case more closely resembles Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.1997). There, the court reversed the lower court's denial of intervention, finding the Chamber of Commerce had a valid interest in "maintaining the election system that governed [its] exercise of political power, a democratically established system that the district court's order had altered." Id. at 1246. Applicants too are "repeat player[s]" in Michigan elections, are "significant part[ies] which [are] adverse [to the plaintiff groups] in the political process," and are among the entities directly regulated by the challenged provisions. Id. at 124647; Northland 487 F.3d at 345 ("If the statute...regulated [intervenor] or its members, [intervenor] would likely have a legal interest[.]"). Defendant confirms
4
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these statutes "are intended to protect voters from political parties, their candidates, and others, who would improperly seek to manipulate or influence their vote."(R.42, p.7).
Thus, Applicants have interests sufficient to warrant intervention. C. Defendant will not adequately protect Applicants' interests. Defendant admits that Applicants burden in showing inadequacy of representation is "minimal" and a mere possibility of inadequate representation is sufficient. (R.42, p.7). Although Defendant presently shares the Applicants' objective: defending the constitutionality ofthe challenged provisions,(Id. at p.13; R.43, pp.7-8), respondents fail to engage with Applicants' arguments. Applicants have no expectation that Defendant will raise and defend their substantial interests (described above) as political parties with candidates and voters. See Libertarian Party v. Johnson, No. 12-12782,2012 U.S. Dist. LEXIS 126096 at *3(E.D. Mich. 2012)(holding that the Secretary of State "does not have an interest in raising and defending the distinct interests of the [MRP] in the enforcement of the Michigan sore loser statute."). Applicants do not argue inadequate protection based on Defendant's party affiliation. Instead, Applicants demonstrated that Defendant has declined to enforce select laws in Michigan with which she disagrees, (R.33, p.15), supporting that Defendant's representation may ultimately prove inadequate. Defendant also
5
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reserves the right to make a different determination about defending the challenged laws "later down the road" at any stage depending on case circumstances.(Ex. A). For these reasons, the Court should allow Applicants to intervene as of right.
D. In the alternative, the Court should grant permissive intervention. Applicants should alternatively be permitted to participate under Rule 24(b). First, as discussed above, Applicants' motion was timely. Second, respondents do not contest that Applicants seek to assert defenses that "share common questions of law [and] fact" with Plaintiffs' challenge of Michigan election laws. Rule 24(b)(3). Finally, Applicants' intervention will neither delay litigation nor unduly prejudice the parties. Defendant argues against intervention to have her motion "heard and resolved as efficiently as possible with no unnecessary delay." (R.42, p.5). Applicants have committed to "submit all filings in accordance with whatever briefing schedules the Court imposes,simultaneously with Defendant unless ordered otherwise,"(R.33, p.18), and remain prepared to work in any expedited schedule to prevent prejudice, including responding to Defendant's motion to dismiss. Plaintiffs' argument that intervention "will significantly increase the volume and costs ofdiscovery,"(R.43, pp.l-2), is misplaced as Applicants'"defenses raise questions of law that are unlikely to require discovery or an evidentiary hearing." (R.33, p.18). Applicants' presence should not complicate discovery, if discovery is necessary or appropriate given the nature ofPlaintiffs' claims.
6
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Applicants reject Plaintiffs' claim that intervention would "introduce partisan

politics into the case."(R.43, p.14). Some partisan political perception is inevitable

in election law cases, particularly when Priorities USA, a Super PAC closely

affiliated with the Democratic Party, is the lead plaintiff Priorities has filed two

other related lawsuits challenging Michigan election laws, and their lead counsel

routinely touts the partisan political nature of his work for Priorities and other

Democrat-affiliated groups.(Ex. B).

Plaintiffs' claimed prejudice as to timeliness carries little weight given that

the Michigan Primary has come and gone with the challenged laws in place.

Plaintiffs' urgency is exaggerated as the General Election is approximately eight

months away with enough time for decision on the merits and any appellate

proceedings. Therefore, the Court should alternatively grant Applicants' motion for

permissive intervention.

CONCLUSION

In sum,Applicants request that the Court grant its motion to intervene(R.33).

BUTZEL LONG,PC

DATED: March 11,2020

By:/s/ Kurtis T. Wilder Kurtis T. Wilder(P37017) 150 W.Jefferson, Suite 150 Detroit, Michigan 48226 (313)225-7000 wilder@butzel.com

7
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA,Rise,Inc., and the Detroit/Downriver Chapter ofthe A. Philip Randolph Institute,
Plaintiffs,
v.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN

Dana Nessel, in her official capacity as Attorney General ofthe State of Michigan,

Defendant.

INDEX OF EXHIBITS
Exhibit A — Email between Mr. Wilder and Ms. Meingast Exhibit B — Mr. Elias Selected Tweets

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Exhibit B

Case 4:19-cv-13341-SDD-RSW ECF No. 46-3 filed 03/11/20 PageID.878 Page 2 of 3

Marc E. Elias. @marceelias
Lawyer fighting to elect Democrats and protect voting rights. My dog's name is Bode.
El 0 Washington, DC c9 DemocracyDocket.com Joined March 2009
692 Following 64.5K Followers

Tweets

Tweets & replies

Media

Likes

***

Marc E. Elias 4, @marceelias • Mar 1

This, from the article, is media both-sides at its worst:"Democrats say Republican-controlled legislatures in some states are actively trying to keep college students away from the polls." Democrats don't "say" it. It is objectively. provably, true. Reporters, please report.

4

U 166

629

MTt

***
Marc E. Elias Q @marceelias • Mar 9 On Friday, Georgia settled a lawsuit with us and agreed to require voters to be notified and given an opportunity to contest/cure the rejection of their absentee ballot. After we sued (and won), Florida changed its law. Yet, Michigan continues to resist our efforts in court.
Marc E. Elias e) @marceelias • Mar 9 Michigan law does not require notifying voters that their absentee ballots have been rejected, nor provide voters with an opportunity to contest a wrongful rejection or cure a mismatch. @prioritiesUSA is suing, but the SOS is fighting us in court. 1000's will be disenfranchised. twitter.com/zackstanton/st...

***

0 Marc E. Elias @marceelias • Mar 10
Reminder: As voters go to the polls in Michigan @prioritiesUSA is continuing to sue Michigan to strike down suppressive voting laws. While I had hoped the Sec of State and AG would agree to side with voters in these cases, our fight continues and we will prevail.

2

ti, 36

(9 104

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Marc E. Elias @marceelias Mar 10 Democrats' strategy of using the courts as another front in this years campaign has paid off again — this time in Georgia, where the state has agreed to back off its aggressive rejections of mailed ballots over signature problems.

q441-41/4=, `Pirc4 e,

ve4*,.b.4, e <fr' 415 / 9(PI

4.5:0

t

Democrats earn another court victory on voter rights Democrats strategy of using the courts as another front in this year's campaign has paid off again. Georgia officials have agreed to back off it..,
thefulcrum.us

2 IDETROIT 000150960\0001\2045956.v1-3/11/20

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA,Rise,Inc., and the Detroit/Downriver Chapter ofthe A. Philip Randolph Institute,
Plaintiffs,
v.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN

Dana Nessel, in her official capacity as Attorney General ofthe State of Michigan,
Defendant.

CERTIFICATE OF SERVICE The undersigned certifies that on this the 11th day of March,2020 they did electronically file the foregoing document which will provide electronic notifications to all parties of record.
Canddie Johnson Canddie Johnson

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 Case 4:19-cv-13341-SDD-RSW ECF No. 48 filed 03/12/20 PageID.882 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE JUDGE R. STEVEN WHALEN
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE
MICHIGAN LEGISLATURE’S MOTION TO INTERVENE

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TABLE OF CONTENTS
CONCISE STATEMENT OF THE ISSUES ..........................................................iv CONTROLLING OR MOST APPROPRIATE AUTHORITY ...............................v INTRODUCTION ....................................................................................................1 BACKGROUND ......................................................................................................2 LEGAL STANDARD...............................................................................................3 ARGUMENT ............................................................................................................3
I. The Legislature is not entitled to intervene as of right. .......................3 A. The Legislature fails to identify a substantial legal interest that will be impaired absent intervention......................4 B. The Legislature fails to demonstrate that the Attorney General inadequately represents its legal interest......................8 C. The Motion to Intervene is untimely. ......................................10
II. The Court should deny permissive intervention. ...............................13 CONCLUSION .......................................................................................................13
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Cases

TABLE OF AUTHORITIES

Page

Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991) ............................................................................6
Ameron, Inc. v. U. S. Army Corps of Eng’rs, 787 F.2d 875 (3d Cir. 1986) .................................................................................6
Bay Mills Indian Cmty. v. Snyder, 720 F. App’x 754 (6th Cir. 2018) .......................................................................13
Blount-Hill v. Zelman, 636 F.3d 278 (6th Cir. 2011) ........................................................................10, 11
Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) ................................................................................4
College Democrats at the University of Michigan v. Johnson, No. 18-12722 (E.D. Mich.)...................................................................................9
Geier v. Sundquist, No. 95-5844, 94 F.3d 644 (6th Cir. Aug. 14, 1994)...........................................10
In re Benny, 812 F.2d 1133 (9th Cir. 1987) ..............................................................................6
Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990) ..........................................................................8, 11
Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 2019) ..............................................................................8
Miracle v. Hobbs, 333 F.R.D. 151 (D. Ariz. 2019)........................................................................1, 9
Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 1999) ............................................................................6, 7
Newdow v. U. S. Congress, 313 F.3d 495 (9th Cir. 2002) ................................................................................5
Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007) ................................................................................5
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Cases

TABLE OF AUTHORITIES

Page

Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 796 (7th Cir. 2019) ........................................................................8
Priorities v. Benson, No. 19-13188 (E.D. Mich. Nov. 17, 2019) Dkt. 7..............................................11
Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309 (6th Cir. 2005) ................................................................................5
Serv. Emps. Int’l Union Local 1 v. Husted, 515 F. App’x 539 (6th Cir. 2013) .......................................................................12
Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) ................................................................................1
Stupak-Thrall v. Glickman, 226 F.3d 467 (6th Cir. 2000) ..............................................................................11
United States v. Alabama, No. 2:06-cv-392-WKW, 2006 WL 2290726 (M.D. Ala. Aug. 8, 2006) .....................................................................................................................9
Windsor v. United States, 797 F. Supp. 2d 320 (S.D.N.Y. 2011) ..................................................................6
STATUTES
Mich. Comp. Laws §§ 14.28, 14.29.......................................................................4, 6

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CONCISE STATEMENT OF THE ISSUES The Michigan House of Representatives and Senate have moved to intervene in this case, which challenges two Michigan election laws: the Absentee Ballot Organizing Ban and the Voter Transportation Ban. Plaintiffs oppose the Legislature’s Motion to Intervene for the following reasons: 1. The Legislature’s request for intervention as of right should be denied because:
a. it asserts only a generalized interest in enforcement of the laws, which is insufficient to demonstrate the substantial interest required to intervene;
b. its interests are adequately protected by the Attorney General who is tasked with defending the State’s interests in this lawsuit; and
c. its belief that the Attorney General will not defend this case relies entirely on unfounded and inappropriate speculation.
2. The Legislature’s request for permissive intervention should be denied because: a. it is untimely; and b. it will unduly delay this time-sensitive proceeding and unnecessarily and significantly multiply litigation costs, and it injects interbranch political disputes into a nonpartisan matter.
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Cases Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990) Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 1999) Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019) Stupak-Thrall v. Glickman, 226 F.3d 467 (6th Cir. 2000)
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INTRODUCTION For many of the same reasons that the Court should deny the pending motion to intervene filed by the Michigan Republican Party and the Republican National Committee (the “Republican Organizations”), the Legislature’s motion to intervene should also be denied. The motion is similarly premised on the assumption that Defendant Attorney General Dana Nessel cannot be trusted to represent the state’s interests in defending the challenged laws because of her political party affiliation. See Dkt. 39 at 4, 6. But in the four months since Plaintiffs first filed this action, the Attorney General has vigorously defended it, moving to dismiss the case not once, but twice, and opposing a motion for preliminary and permanent injunction. The Legislature’s belief that she will act to the contrary is supported by no evidence and is thus disproved by the very record in this case. The motion similarly fails to identify a specific, substantial legal interest that the Legislature uniquely has in the outcome of this case that could justify its intervention. Again, the Legislature’s arguments here rest entirely on the Attorney General’s party affiliation. But that is not, and has never been, sufficient to establish partiality. Cf. Siefert v. Alexander, 608 F.3d 974, 983 (7th Cir. 2010) (rejecting notion that a judge’s affiliation with a political party is enough to create an appearance of bias); Miracle v. Hobbs, 333 F.R.D. 151, 156 n. 8 (D. Ariz. 2019).
-1-

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Without a unique interest specific to this case or a reason to believe Defendant will not defend the laws challenged here¸ intervention is inappropriate. The Legislature’s delay in seeking intervention also strongly weighs against intervention, as does the fact that its intervention will, without question, exponentially multiply the expense of this litigation and will unjustifiably delay resolution of the case. The Legislature promises as much in its motion, stating it will file additional motion to dismiss briefing and even seek to have the matter reassigned so the parties must start anew with a different judge. For all of these reasons, the motion for intervention should be denied.1
BACKGROUND The Court is familiar with the procedural background of this case. After filing an initial complaint on November 12, 2019, the parties have now completed briefing on Plaintiffs’ motion for preliminary and permanent injunction and Defendant’s second motion to dismiss. Either motion may, as a practical matter, resolve the case. As the Legislature makes references to, this case is one of three filed with Priorities as a plaintiff in Michigan challenging various aspects of the State’s election laws. Priorities first sued the Secretary of State in federal district court to
1 If the Court is inclined to consider the Legislature’s suggestion that this matter be reassigned even in the absence of an affirmative motion to do so, Plaintiffs request an opportunity to oppose the reassignment as provided in Local Rule 83.11(b).
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challenge laws that relate to election administration under federal law. Priorities then filed this lawsuit separately because the challenged laws are criminal statutes; therefore, the Attorney General is the most appropriate defendant. Priorities’ subsequent suit against the Secretary was filed in state court because that lawsuit asks for injunctive relief based on state law, a claim that cannot be redressed in federal court under the Pennhurst Doctrine.
The Legislature’s motion represents the second attempt by Republican controlled organizations to intervene in this lawsuit. The first, filed shortly before the Legislature filed its motion, was initiated by the Republican Organizations. To the extent that the issues and legal arguments overlap, Plaintiffs refer the Court to their response in opposition to that motion, filed on March 4, 2020 which is incorporated by reference. Dkt. 43.
LEGAL STANDARD The legal standard governing this motion is the same applicable to the Republican Organization’s motion to intervene. Dkt. 43 at 8-9.
ARGUMENT I. The Legislature is not entitled to intervene as of right.
The Legislature’s motion fails to satisfy any of the four requirements for intervention as of right. First, it does not identify a substantial legal right that will be impaired absent intervention. Second, it does not point to a single statement, act,
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or litigation decision relating to this lawsuit that suggests the Attorney General will not adequately protect the Legislature’s generalized interest in enforcing the law, as is her duty to do, see Mich. Comp. Laws §§ 14.28, 14.29. And, third, the Legislature sat on its request to intervene for four months as the case progressed and its intervention at this point would prejudice Plaintiffs and the public at large.
A. The Legislature fails to identify a substantial legal interest that will be impaired absent intervention.
The Legislature’s motion identifies two interests in this case, but neither constitutes a substantial legal interest sufficient to support intervention as of right. First, the Legislature contends that it has an interest in the outcome of this lawsuit because its members have to compete in elections that are governed by Michigan’s election laws, including the challenged laws. See Dkt. 39 at 16. This interest is no different from the one asserted by the Republican Organizations in their separate motion to intervene, and is insufficient to support intervention for the same reasons Plaintiffs previously identified. See Dkt. 43.
Second, the Legislature’s asserted interest in upholding the constitutionality of the laws passed by the body, Dkt. 39 at 15-16, is nothing more than a generic interest in the enforcement of the laws and, under Sixth Circuit precedent, is not a substantial legal interest supporting intervention. See Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 780-82 (6th Cir. 2007) (official proponent of
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ballot initiative could not intervene); Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 343-46 (6th Cir. 2007) (same); Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 317 (6th Cir. 2005) (same). “[A] public law, after enactment, is not the [legislature’s] any more than it is the law of any other citizen or group of citizens” who are governed by it, and a legislature’s interest in defending a law is no less generic than the interests of other citizens in seeing laws enforced. Newdow v. U. S. Congress, 313 F.3d 495, 499-500 (9th Cir. 2002) (rejecting U.S. Senate’s argument that it had a significant, protectable interest in defending a statute it passed because that interest only constituted “generalized harm”).
The Legislature argues that it is especially positioned to intervene here because the lawsuit involves Michigan’s election laws and the Legislature has specific authority to promulgate laws related to elections. See Dkt. 39 at 16. While it is true that the Legislature is vested with authority to legislate in this area, Michigan’s Constitution makes equally clear that it is not permitted to act in an executive function. Mich. Const. Art. 3 § 2; cf. Veto Message from Governor, 2018 Journal of the House Addenda 3028-29 (Mich. Dec. 28, 2018) (vetoing law that would have granted Legislature automatic right to intervene as an inappropriate infringement on executive authority). Michigan Law specifically vests Defendant,
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the Attorney General of the State of Michigan, with the authority to defend
challenges to Michigan’s laws. Mich. Comp. Laws §§ 14.28, 14.29.
Finally, the Legislature suggests it has an interest in defending the
constitutionality of the challenged laws because, as a Democrat, the Attorney
General simply cannot be trusted to do so. That argument is at odds with the actual
record in this litigation (something the Legislature simply ignores). And the
argument does not find any support in the case law. The Legislature cites a number
of cases allowing legislative intervention, but—critically—in each of those cases the
executive charged with enforcing the law had refused to provide a defense.2 Here,
Defendant has vigorously defended the laws, filing two motions to dismiss, asserting
every possible argument in favor of an immediate dismissal of Plaintiffs’ case, and
opposing the motion for preliminary and permanent injunction. Dkts. 10, 27, 30.
2 See Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 1999) (“NEOCH”) (allowing intervention for appeal where Secretary declined to appeal); Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) (explaining that the U.S. House of Representatives was allowed to intervene previously because the defendants had admitted that the challenged statutes were unconstitutional); In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987) (allowing intervention of the U.S. Congress when the Department of Justice agreed with the plaintiff that the statute was unconstitutional); Ameron, Inc. v. U. S. Army Corps of Eng’rs, 787 F.2d 875, 888, n.8 (3d Cir. 1986) (U.S. Congress had standing to intervene because the Army defendant took the position that the challenged statute was unconstitutional under certain circumstances); Windsor v. United States, 797 F. Supp. 2d 320, 324 (S.D.N.Y. 2011) (allowing intervention by the House when the defendant Department of Justice “made clear that it w[ould] not defend the constitutionality” of the challenged statute).
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The Legislature cites NEOCH to argue that it has a substantial interest in intervening. Dkt. 39 at 5, 14. But comparison of this case to that one demonstrates just the opposite. In that case, the Attorney General of Ohio sought to intervene on behalf of the legislature and the State in a voting rights case brought against the Secretary of State. NEOCH, 467 F.3d at 1006. The Sixth Circuit found that intervention was appropriate because the Attorney General and the Secretary had divergent institutional interests. Id. at 1007. “[T]he Secretary's primary interest is in ensuring the smooth administration of the election, while the State and General Assembly have an independent interest in defending the validity of Ohio laws and ensuring that those laws are enforced.” Id. Contrast the situation with this case, where the Attorney General is already the named defendant and is actively and strongly defending the case, because she shares an identical interest to the proposed intervenors’ interest in defending the validity of Michigan’s laws and ensuring that those laws are enforced, especially given that the challenged laws are criminal laws which she is tasked with enforcing.
Accordingly, the Legislature has failed to demonstrate it has a substantial legal interest justifying its intervention in this case.
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B. The Legislature fails to demonstrate the Attorney General inadequately represents its legal interest.
The Legislature “bear[s] the burden of demonstrating inadequate representation” to prevail on its motion to intervene. Jansen v. City of Cincinnati, 904 F.2d 336, 342-43 (6th Cir. 1990). Factors considered by courts evaluating the adequacy of representation include whether the proposed intervenors possess a substantial legal interest that is adverse to the defendant, whether the defendant has aggressively fulfilled her duty to defend this case, and whether there is evidence of collusion between plaintiff and defendant. See Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 2019). The Legislature fails to demonstrate that any of these factors justify intervention.
As already discussed, the Legislature and Defendant share an identical legal interest in the outcome of this litigation; they do not have adverse interests. Defendant’s affiliation with the Democratic Party does not change those institutional interests and it most assuredly does not render her unable to defend this lawsuit. Indeed, courts have denied intervention to legislative bodies, individual legislators, and other parties that attempt to invoke political affiliation as a proxy for adequate representation. See, e.g., Planned Parenthood of Wis., Inc. v. Kaul, 942 F.3d 793, 796 (7th Cir. 2019) (affirming denial of motion to intervene as of right of Republican legislature, when defendant was a Democratic Attorney General, because “the
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Legislature did not demonstrate that the Attorney General [wa]s an inadequate representative of the State’s interest absent a showing he is acting in bad faith or with gross negligence”); Miracle, 333 F.R.D.at 156 (“Proposed Intervenors must do more than allege—and superficially at that—partisan bias” to establish that the defendant will not adequately represent their interests); United States v. Alabama, No. 2:06-cv-392-WKW, 2006 WL 2290726, at *5 (M.D. Ala. Aug. 8, 2006) (rejecting argument of proposed Democratic intervenors that the defendant would not adequately represent them because “the defendants are represented by a Republican Attorney General and the plaintiff is aligned with the Republican Party”).
The Attorney General has vigilantly fulfilled her duty to defend this case and there is no evidence of collusion between Plaintiffs and Defendant. In an attempt to prove otherwise, the Legislature points to (1) two Facebook posts and (2) actions the Attorney General took in her role as representative of the State of Michigan in past litigation. Dkt. 39 at 18. The Facebook posts do not express any opinions on the challenged laws and have no bearing whatsoever on Defendant’s ability to defend the laws challenged in this litigation. The settlement of College Democrats at the University of Michigan v. Johnson, No. 18-12722 (E.D. Mich.), is similarly
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irrelevant. In fact, neither Plaintiffs nor Defendant were parties to that lawsuit.3 The conduct of the parties in that lawsuit does not reflect on the possible conduct of the different parties in this one. And even if relevant, the settlement of a single case does not a pattern make, never mind the Legislature’s failure to explain why that settlement was inappropriate.
The Michigan Legislature may not like Defendant’s litigation strategy (although it is difficult to imagine what more the Attorney General could do), but that is not a justification for intervention as of right under Rule 24(a)(2)—otherwise, anyone with an interest aligned with any defendant could intervene in virtually any matter in a misguided attempt to simply litigate the case differently. See Geier v. Sundquist, No. 95-5844, 94 F.3d 644, at *2 (6th Cir. Aug. 14, 1994) (unpublished opinion) (“A mere disagreement over litigation strategy … does not, in and of itself, establish inadequacy of representation.” (quoting Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987)).
C. The Motion to Intervene is untimely. Even if the motion to intervene did not suffer from the deficiencies discussed above, it should still be denied because it is untimely. In all instances, a motion to intervene must be timely. Timeliness is not measured in months but in the progress
3 Defendant was involved in College Democrats but only in her role as attorney for the Secretary of State.
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of the case before intervention is requested, the proposed intervenor’s purpose and diligence in pursing intervention, and the prejudice to the parties created by any delay in intervening. Blount-Hill v. Zelman, 636 F.3d 278, 284 (6th Cir. 2011); Jansen, 904 F.2d at 340. Here, the Legislature’s motion is not timely for three reasons.
First, the case has advanced rapidly, and its resolution is within sight. At this point, the Court has pending before it two fully briefed, dispositive motions including Defendant’s second motion to dismiss and the motion on Plaintiffs’ ultimate request for relief (a motion for preliminary and permanent injunction).
Second, the Legislature unduly delayed in seeking intervention until after the first motion to dismiss, after the amended complaint, after the motion to expedite, after the motion for preliminary injunction, after the case was transferred from Judge Goldsmith to Judge Dawkins, after the second motion to dismiss, and after the Rule 26 conference, and after discovery requests have been issued, despite the fact that it has known about the case since its inception. See Legislature’s Motion to Intervene, Priorities v. Benson, No. 19-13188 (E.D. Mich. Nov. 17, 2019) Dkt. 7 at 7 (describing this lawsuit). Indeed, the Legislature first stated its interest in intervening in this suit back in November when it was first filed. Id. at 8. It identifies no reason for its delay. That delay, however, strongly militates against granting intervention.
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See Stupak-Thrall v. Glickman, 226 F.3d 467, 478 (6th Cir. 2000); Blount-Hill, 636 F.3d at 285-86.
Third, the motion should not be granted because allowing intervention at this point would prejudice Plaintiffs, as well as the public at large. Plaintiffs have consistently explained the critical need for a speedy resolution of this case. See Dkt. 23, 25. For the reasons discussed in Plaintiffs’ opposition to the Republican Organization’s motion to intervene, see Dkt. 43 at 17-19, allowing intervention now would unnecessarily complicate and delay the proceedings. The Legislature has promised as much: it has promised to file an additional motion to dismiss (beyond the two that the Attorney General has already filed in this case) and suggests it would oppose any effort to settle. Dkt. 39 at 9-11. It also promises to seek reassignment of this case to an entirely different judge, if permitted to intervene. See Dkt. 39 at 11. The Legislature’s delay in seeking intervention, coupled with its intended litigation strategy, exacerbates the prejudice that would follow to Plaintiffs if the motion to intervene is granted by diminishing the likelihood that the case will be resolved in advance of the next election. See Serv. Emps. Int'l Union Local 1 v. Husted, 515 F. App’x 539, 542 (6th Cir. 2013) (finding denial of permissive intervention appropriate where motion was filed after preliminary injunction briefing because delay would pose “a significant risk of upsetting the expedited schedule necessitated by the upcoming election”).
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II. The Court should deny permissive intervention. The Legislature’s request in the alternative for permissive intervention should
also be denied. Here, the Legislature relies on the same arguments advanced to support intervention as of right, see Dkt. 39 at 21-22; but permissive intervention is inappropriate for the same reasons: the motion is not timely, the Legislature lacks a substantial legal interest in this action, and it has failed to demonstrate that the Attorney General inadequately represents any substantial legal interest. See Dkt. 43 at 19-21; see Bay Mills Indian Cmty. v. Snyder, 720 F. App’x 754, 759 (6th Cir. 2018) (“The fact that Saginaw’s position is being represented counsels against granting permissive intervention”). Moreover, as discussed above and in Plaintiffs’ Opposition to the Republican Organizations’ motion to intervene, the Legislature’s involvement in this case would also complicate and extend litigation proceedings. See id. In sum, the Court should not allow the Legislature to intervene, where doing so would only delay and complicate these proceedings while providing no meaningful benefit to the Court, the existing parties, or the interests of justice.
CONCLUSION For the reasons set forth above, the Michigan Legislature’s Motion to Intervene should be denied.
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Dated: March 12, 2020
Kevin J. Hamilton PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com
Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

Respectfully submitted,
By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs *Seeking Admission to E.D. Mich.

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CERTIFICATE OF SERVICE I hereby certify that on March 12, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts).
Respectfully submitted, By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 49 filed 03/19/20 PageID.903 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., and THE DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

Plaintiffs,

Case No. 3:19-CV-13341

v.
DANA NESSEL, in her official capacity as the Attorney General of the State of Michigan,

HON. STEPHANIE DAWKINS DAVIS MAGISTRATE R. STEVEN WHALEN

Defendant. /

REPLY IN SUPPORT OF THE MICHIGAN SENATE AND MICHIGAN HOUSE OF REPRESENTATIVES’ MOTION TO INTERVENE

Case 4:19-cv-13341-SDD-RSW ECF No. 49 filed 03/19/20 PageID.904 Page 2 of 10
CONTROLLING OR MOST APPROPRIATE AUTHORITY Fed. R. Civ. P. 24 INS v. Chadha, 462 U.S. 919 (1983) Mich State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v.
Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006) Trbovich v. UMW, 404 U.S. 528, 538 (1972)
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The Legislature seeks intervention to ensure that the Plaintiffs’ claims meet with a vigorous defense. The Attorney General did not file a response to this intervention motion, but Plaintiffs seek to exclude the Legislature from this proceeding. Their motive for doing so is self-evident. Plaintiffs plainly anticipate an easier, faster, and more advantageous outcome against Attorney General Nessel than against the Legislature. That expectation also can be seen in Plaintiffs’ overarching strategy of arbitrarily fragmenting their allegations about Michigan’s election-law framework into three separate lawsuits before three judges, spread across two fora, all of which reflects the same kind of procedural maneuvering underlying the opposition advanced here. Despite Plaintiffs’ protestations otherwise, this is a concerted, thoroughly planned strategy to seek the path of least resistance.
The fact that Plaintiffs so vigorously oppose intervention is itself a strong indication that intervention is necessary and warranted. Moreover, that opposition is ultimately deficient under the applicable law. For the reasons stated here and in its motion, the Legislature respectfully asks that the Court affirm its right to intervene as a defendant in this matter or, in the alternative, allow it to intervene permissively.
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I. The Legislature has a substantial interest justifying intervention. Plaintiffs ignore the Sixth Circuit’s heavy presumption in favor of finding an interest justifying intervention. “To satisfy [the impairment] element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” Mich State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997). Plaintiffs create a straw man by conflating two separate elements of the intervention inquiry. Rather than address the Legislature’s particularized interest as the only body constitutionally vested with the authority and obligation to enact statutes to protect the purity of Michigan’s elections, Plaintiffs suggest that the Legislature’s interest depends on whether Attorney General Nessel opposes the law. But adequacy of representation is a separate element (and one, as explained below, that also justifies the Legislature’s intervention). With respect to the “interest” inquiry, the caselaw is clear: Legislative bodies have an interest in defending duly enacted statutes. See INS v. Chadha, 462 U.S. 919, 939 (1983) (“Congress is . . . a proper party to defend the constitutionality of § 244(c)(2)”); Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006) (Ohio Legislature had interest in preservation of Voter ID statute); Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) (recognizing House of Representatives’ ability to intervene to
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defend alcohol-labeling statutes). The fact that intervention of a legislative body occurs with regularity—which even Plaintiffs do not refute—underscores that such a body has a substantial interest in defending duly enacted statutes.
Plaintiffs’ reliance on Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019), is misplaced. Indeed, the Seventh Circuit Court of Appeals “assume[d] the Legislature has an interest” in the constitutionality of its statutes that might be impaired. Id. at 797. While the Seventh Circuit ultimately affirmed the district court’s denial of intervention, that ruling was based on the “adequacy of representation” inquiry, under a more stringent rebuttable-presumption standard that the Sixth Circuit has never adopted. Thus, Planned Parenthood actually affirms, rather than rebuts, the Legislature’s substantial interest in protecting its statutes.
II. Attorney General Nessel is not an adequate representative of the Legislature’s interests.
Attorney General Nessel filed a motion to dismiss Plaintiffs’ claims under Fed. R. Civ. P. 12(b)(6), which remains pending. The Legislature agrees with the arguments advanced in the Attorney General’s motion and will raise those arguments in a motion under Fed. R. Civ. P. 12(c) if permitted to intervene. The Attorney General’s motion, however, omits additional dispositive legal arguments and therefore fails to blunt the Legislature’s belief that Attorney General Nessel will not ultimately defend these election laws on the merits.
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This Court need only look to recent election-law cases to see that Attorney General Nessel “may not adequately represent” the Legislature’s interest, which is all that the law requires. In her role as the representative of Secretary Benson, Attorney General Nessel has repeatedly refused to defend Michigan law. In the Redistricting Litigation for instance, the Court noted that Secretary Benson and Attorney General Nessel had “elected not to defend” the existing structure despite initial signals to the contrary. League of Women Voters v. Benson, Dkt. No. 2:17CV-14148 (ECF No. 237). The Legislature’s initial motion details other incidents in which the Attorney General has conceded or offered only token resistance, in lieu of protecting Michigan’s election laws.
Though Plaintiffs deride the Legislature as unnecessarily politicizing this dispute, its words ring of too much protest. To be sure, the confluence of the lead Plaintiff’s own political alignment with Attorney General Nessel’s raises concern about her likelihood of providing a full defense. But it is her public statements about declining to defend laws with which she disagrees and her recent history in following through on those promises that cements the doubts about the adequacy of her representation. And Plaintiffs’ serial filings with alternating courts and defendants appear aimed at creating an environment in which no less-than-committed defense can prosper.
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At bottom, the applicable legal standard supplies the correct answer here. The prospective intervenor need only show that the representation of its interest “may be inadequate.” Trbovich v. UMW, 404 U.S. 528, 538, n.10 (1972) (emphasis added); Michigan State AFL-CIO, 103 F.3d at 1247. Plaintiffs’ position depends on importing into this Circuit a burden-shifting rebuttable presumption employed in the Seventh Circuit. See generally Planned Parenthood, 942 F.3d 793. And even there, the legitimacy of the heightened standard is questioned. See Id. at 807 (“First, the standard is incompatible with the text of the rule. . . . Second, the origins of the gross-negligence/bad-faith standard are deeply flawed. The standard is the product of errant doctrinal creep and has no solid foundation.”) (Sykes, J, concurring).
In the Sixth Circuit, however, the threshold to show inadequate representation remains “minimal.” Michigan State AFL-CIO, 103 F.3d at 1247. “One is not required to show that the representation will in fact be inadequate. For example, it may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.” Id. The Legislature easily meets this threshold.
III. The Legislature’s Intervention is Timely. Plaintiffs’ argument that the Legislature’s motion is untimely is contrary to the law and facts, and rings of “gotcha”-gamesmanship. The Legislature moved to intervene in the first-filed of this trio of companion cases, and stated in that motion
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its intent to intervene in the other cases after that decision—a proper deference to the Court with the first-filed case. It was only Plaintiffs’ futile rush to the altar in this case that required the Legislature’s swift action. In the first-filed case, Plaintiffs suggested that the Legislature was too early; now Plaintiffs say the Legislature is too late. See Case No. 3:19-CV-13188, ECF No. 11, p 21.
If this case has “advanced rapidly,” as Plaintiffs suggest, it is only because of Plaintiffs’ transparent attempt to leapfrog this case in front of its first-filed companion case before Judge Cleland. Indeed, though the same lead counsel filed both cases and both involve Michigan’s absentee-ballot-related election laws, Plaintiffs only deemed this case worthy of a “Motion to Expedite.” Why?
In any event, Plaintiffs misrepresent the advanced stage of this case. No scheduling conference has taken place and no scheduling order has been issued. Indeed, the Court denied Plaintiffs premature attempt to begin discovery, holding that it would decide initial dispositive motions “before developing a discovery, briefing, and trial schedule on the merits . . . .” Plaintiffs point to no cases where a motion to intervene at this stage of the case is untimely.
CONCLUSION For the reasons explained here and in its motion to intervene, the Legislature respectfully asks that the Court allow it to intervene in this matter to protect its interests in the integrity of Michigan’s election-law framework and to ensure a full
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and fair adjudication of this matter on the merits, following a truly adversarial process.
Respectfully submitted, BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com meyers@bsplaw.com steinberger@bsplaw.com Dated: March 19, 2020
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CERTIFICATE OF SERVICE I hereby certify that on March 19, 2020, I electronically filed the foregoing with the Clerk of the Court using the ECF System, which will send notification to all ECF counsel of record.
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47575)
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 Case 4:19-cv-13341-SDD-RSW ECF No. 59 filed 05/22/20 PageID.961 Page 1 of 55

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, et al.,

Case No. 19-13341

Plaintiffs v.

Stephanie Dawkins Davis United States District Judge

DANA NESSEL,

Defendant. ________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (ECF No. 29)

I. PROCEDURAL HISTORY

Plaintiff, Priorities USA, originally filed this action challenging two

Michigan statutes, one governing the absentee ballot process in Michigan and the

other governing transportation to polling places. (ECF No. 1). Defendant,

Michigan Attorney General Dana Nessel, moved to dismiss the complaint on

December 20, 2019. (ECF No. 10). Shortly, thereafter, District Judge Marc A.

Goldsmith, to whom this matter was previously assigned, entered an order

allowing Priorities to file an amended complaint to address the issues raised in the

motion to dismiss. (ECF No. 13). On January 27, 2020, plaintiffs filed an

amended complaint, adding two additional plaintiffs, Rise, Inc. and

Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI). (ECF

No. 17). Defendant filed a motion to dismiss the amended complaint on February

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10, 2020. (ECF No. 27). This matter is fully briefed. (ECF Nos. 40, 44). The Court held a hearing via video, pursuant to notice, on May 8, 2020. (ECF No. 56).
For the reasons set forth below, defendant’s motion to dismiss the amended complaint is GRANTED in part and DENIED in part. Counts III and VII are DISMISSED and all remaining counts are left intact. II. FACTUAL BACKGROUND AND THE AMENDED COMPLAINT
Priorities is a 501(c)(4) nonprofit corporation and a “voter-centric progressive advocacy and service organization.” (ECF No. 17, PageID.92, ¶ 7). Its “mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives.” Id. It engages in activity to “educate, mobilize, and turn out voters” in Michigan, and states that it “expects to” make expenditures and contributions towards those objectives in upcoming Michigan state and federal elections. Id.
Rise is also a 501(c)(4) nonprofit organization that “runs statewide advocacy and voter mobilization programs in Michigan and California, as well on a number of campuses nationwide.” (ECF No. 17, PageID.93, ¶ 8). Rise claims 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 population is a necessary condition to achieving its policy goals.” Id. Rise launched its second state-specific campaign in Michigan in 2019, and says it has
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eleven student organizers who are paid to organize their campuses including voter education and turnout activities. Rise plans to continue this program through the 2020 elections. Id. at 9. This effort has included and will continue to include engaging their fellow students in grassroots voter education, registration, and turnout activities, including on-campus, get-out-the-vote drives and canvasses. Id.
DAPRI is a local chapter of a national 501(c)(3) nonprofit organization. It is a membership organization “with a mission to continue to fight for Human Equality and Economic Justice and to seek structural changes through the American democratic process.” (ECF No. 17, PageID.95, ¶ 14). It has members who are “involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in Michigan. Id. DAPRI’s members have “provided rides” to and from the polls for the community on election day and intends to continue to do so and to expand this work in future elections. Id. at ¶ 16. DAPRI acknowledges that Proposal 3 makes absentee voting available to all, and says that it would like to educate voters about the opportunity to vote absentee. (ECF No. 17, PageID.96, ¶ 17).
The Absentee Ballot Law provides that, in order to receive an AV ballot, a voter must request an application and submit that application to the voter’s local clerk. For both primaries and regular elections, an elector may apply for an AV ballot at any time during the 75 days preceding the primary or election. Mich.
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Comp. Laws § 168.759(1)-(2). In both cases, “the elector shall apply in person or
by mail with the clerk” of the township or city in which the elector is registered.
Id. Subsection 759(3) provides that:
(3) An application for an absent voter ballot under this section may be made in any of the following ways:
(a) By a written request signed by the voter.
(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.
(c) On a federal postcard application.
(4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.
(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request.
Mich. Comp. Laws §§ 168.759(3)-(5)
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Where a form application is used, under § 759(5), the “application shall be
in substantially the following form,” which then provides the body of the form and
includes a general “warning” and a “certificate” portion for “a registered elector”
delivering a completed application for a voter. Mich. Comp. Laws § 168.759(5).
The warning must state that:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk’s office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk’s authorization to return your application.
Id.
Similarly, the certificate for a registered elector returning an AV ballot
application must state that:
I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law.
Id.
Under § 759(6), the application form must include the following instructions
for an applicant:
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Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-inlaw, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application.
Mich. Comp. Laws § 168.759(6).
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
assistant of the clerk is guilty of a misdemeanor.” Mich. Comp Laws
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§ 168.759(8). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931(1)(b)(iv) and (1)(n).
Based on these provisions, there are two ways to apply for an AV ballot: (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning 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). Clerks have also been instructed by the Secretary of State for a number of years to accept applications sent by facsimile and email. Voters who cannot appear in person to deliver their application or cannot mail their application or return it by email or facsimile, may have an immediate family member deliver their application, or a voter may request another registered voter to return the application. Mich. Comp. Laws §§ 168.759(4), (5), (6). Thus, only persons authorized by law, i.e. those described in § 759(4), may return a signed application for an AV ballot to a local clerk. Mich. Comp. Laws §§ 168.759(4)-(5).
What plaintiffs call the “Voter Transportation Ban” can be found at Mich. Comp. Laws § 168.931, and provides, in part:
(1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:
* * *
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(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. Mich. Comp. Laws § 168.931(1)(f) (hereinafter “Voter Transportation Law”). 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.” Plaintiffs allege that they are “expending and diverting additional funds and resources” in get-out-the-vote (GOTV), voter education efforts, mobilization, and turn-out activities “at the expense of” other efforts in Michigan and in other states. (ECF No. 17, PageID.98, ¶ 25). Plaintiffs further allege that they are required to expend “additional resources” to educate their employees, volunteers, and partners about the statutes and how to comport their activities with the law. Id. Plaintiffs challenge the Voter Transportation Law (Mich. Comp. Laws § 168.931(1)(f)) (see ECF No. 17 PageID.101-107, ¶¶ 33-47) and what they call the “Absentee Ballot Organizing Ban” (hereinafter the “Absentee Ballot Law”) (Mich. Comp. Laws § 168.759(4), (5), (8)) (see ECF No. 17, PageID107-112, ¶¶ 48-55). More particularly, they contend that the Absentee Ballot Law is (1) unconstitutionally vague and overbroad under the First and Fourteenth
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Amendments (Count I); (2) violative of their Speech and Association rights under the First and Fourteenth Amendments (Count II); (3) an undue burden on the fundamental right to vote under the Fourteenth Amendment (Count III); and (4) a violation of Section 208 of the Voting Rights Act of 1965 (Count IV). Similarly, they assert that the Voter Transportation Law is (1) 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); (3) an undue burden on the fundamental right to vote under the Fourteenth Amendment (Count VII); and (4) a violation of the Section 208 of the Voting Rights Act of 1965 (Count VIII). (ECF No. 17). III. ANALYSIS AND CONCLUSION
A. Standing 1. Standard of Review
As explained in McQueary v. Colvin, 2017 WL 63034, at *3 (W.D. Ky. Jan. 5, 2017), a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack).” Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). “A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition
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as true and construed in the light most favorable to the nonmoving party.” McQueary, at *3 (quoting Ritchie, 15 F.3d at 598); see also Cartwright, 751 F.3d at 759 (“A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the Court takes the allegations of the complaint as true for purposes of the Rule 12(b)(1) analysis”). “A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading’s allegations, but a challenge to the factual existence of subject matter jurisdiction.” McQueary, at *3 (quoting Ritchie, 15 F.3d at 598). And, where a plaintiff relies on evidence outside the complaint to support a standing claim, the challenge is factual, and the Court instead must assess the factual basis for jurisdiction by weighing the evidence tendered. Forgy v. Stumbo, 378 F. Supp. 2d 774, 776 (E.D. Ky. 2005) (citing DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004)); see also Kardules v. City of Columbus, 95 F.3d 1335, 1347 n. 4 (6th Cir. 1996) (The Sixth Circuit has recognized a district court's authority to consider extrinsic evidence when addressing the issue of standing.). Defendant primarily makes a facial attack, with the exception of her voter representation challenges pertaining to Counts III and VII, which require the court to consider evidence outside of the amended complaint.
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2. Injury-in-fact To establish standing, a plaintiff must show a concrete and particularized injury that is actual or imminent, a causal connection between the injury and the conduct complained of, and likelihood that a favorable decision will redress the injury. Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016) (citing H.D.V.–Greektown, LLC v. City of Detroit, 568 F.3d 609, 616 (6th Cir. 2009)). In addition to suing on behalf of its members, an entity may sue “on its own behalf because it has suffered a palpable injury as a result of the defendants’ actions.” Id. (citing MX Grp., Inc. v. City of Covington, 293 F.3d 326, 332–33 (6th Cir. 2002)). At the motion to dismiss stage, the court “presumes that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990). When reviewing a motion to dismiss on the basis of standing, the court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). The plaintiff does, however, bear the burden of establishing standing and must “clearly allege facts demonstrating each element.” Parsons v. U.S. Dept. of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (quoting Warth, 422 U.S. at 518).
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Plaintiffs allege they are injured by the laws because the statutes proscribe political expression in which they desire to engage. (ECF No. 17, PageID.97, ¶ 23). The statutes proscribe offering to assist voters with absentee ballot applications, restrict possession of absentee ballot applications, and ban paying a third party to transport voters to the polls. Plaintiffs want to do each of these things, and they assert that they have no choice but to abstain from engaging in that conduct because the statutes ban it. Accordingly, the challenged statutes harm plaintiffs even in the absence of prosecutions, they posit, because they are required to abstain from engaging in constitutionally protected political expression. (ECF No. 17, PageID.97-98, ¶ 23).
Plaintiffs also allege in the complaint that the challenged statutes frustrate the plaintiffs’ mission of, and efforts in, educating, mobilizing, and turning out voters in Michigan by reducing the transportation options of Michigan citizens to get to polling places and by criminalizing the acts of individuals and organizations that want to (1) transport individuals to vote and (2) assist voters with registering for or returning absentee ballot applications. (ECF No. 17, PageID.98, ¶ 24). They also say that they are expending and diverting additional funds and resources in GOTV, voter education efforts, mobilization, and turn-out activities in Michigan, and for Priorities and Rise, this is happening at the expense of its efforts in other states, in order to combat the effects of the Voter Transportation Law and
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Absentee Ballot Law. (ECF No. 17, PageID.98-99, ¶ 25). Plaintiffs say they are required to expend additional resources and employee time to educate their employees, volunteers, and partners about the Voter Transportation and Absentee Ballot Laws to avoid exposing them to criminal prosecution. Id. Specifically, Rise and DAPRI focus programming on getting students to the polls. Because of the Voter Transportation Law, volunteers and DAPRI will have to recruit and train volunteers to drive students to vote rather than renting large capacity vehicles such as buses or leveraging existing resources like the Detroit Bus Company and Uber. (ECF No. 17, PageID.99, ¶ 26). Plaintiffs also allege an injury caused by both laws because they abstained from political expression proscribed by these statutory restrictions out of a credible fear of prosecution. Plaintiffs allege that defendant and other state officials have refused to disavow enforcement of the Voter Transportation Law and the Absentee Ballot Law. (ECF No. 17, PageID.99, ¶ 27; see also, ¶¶ 28, 30, 31, 32).
Defendant asserts three purported defects in the amended complaint such that plaintiffs have failed to establish standing: (1) insufficient facts to support a “credible threat of prosecution”; (2) insufficient facts to support their claim that they will have to “divert resources” to comply with the statutes; and (3) plaintiffs fail to allege that they have any members who are Michigan voters and they do not
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sufficiently allege how they as institutions have been injured by the challenged statutes.
a. Threat of Prosecution Defendant’s standing argument as to the credible threat of prosecution does not address head-on plaintiffs’ allegations that the statutes preclude them from engaging in constitutionally protected political expression. The Supreme Court has made clear that the burden of establishing a credible threat of prosecution is fairly minimal in this specific context. When an individual is subject to a threat of enforcement, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158-59 (2014) (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat”)). Rather, the Supreme Court has held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Id. (quoting Babbitt
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v. Farm Workers, 442 U.S. 289, 298 (1979)). In the motion to dismiss context, a plaintiff “must plead—and in later stages of litigation, prove”—“an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1049 (6th Cir. 2015) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Defendant overlooks the appropriate standard for “credible threat of prosecution” where a statute implicates the First Amendment. “Within the context of the First Amendment, the Supreme Court has enunciated concerns that justify a lessening of the usual prudential requirements for a pre-enforcement challenge to a statute with criminal penalties.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284-85 (6th Cir. 1997) (citing Sec’y of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984)). The harm alleged in First Amendment cases is the “chilling effect” on the constitutionally protected right to free expression, which, the Supreme Court has stated, is “of transcendent value to all society.” Id. (quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). Indeed, a statute prohibiting activity protected by the First Amendment leads to “self-censorship, a harm that can be realized even without an actual prosecution.” Id. (quoting Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988); Dombrowski, 380 U.S. at 486-87 (the practical value of the First Amendment right may be destroyed
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if not vindicated before trial)). Thus, the appropriate inquiry in pre-enforcement
challenges in First Amendment cases “usually focuses on how imminent the threat
of prosecution is and whether the plaintiff has sufficiently alleged an intention to
refuse to comply with the statute in order to ensure that the fear of prosecution is
genuine and the alleged chill on First Amendment rights is concrete and credible,
and not merely imaginative or speculative.” Id. (citing Steffel v. Thompson, 415
U.S. at 459; Babbitt, 442 U.S. at 301-03). The Sixth Circuit has explained that
parties not yet affected by the actual enforcement of the statute are allowed to
challenge actions under the First Amendment in order to ensure that an overbroad
statute does not act to “‘chill’ the exercise of free speech and expression,” a
constitutionally protected right. Id. (quoting Dambrot v. Central Michigan Univ.,
55 F.3d 1177, 1182 (6th Cir. 1995)).
Here, plaintiffs have plainly alleged their intention to violate the statutes and
alleged that defendant, and all county prosecutors in the State of Michigan have
refused to disavow enforcement:
28. On October 8, 2019, Plaintiff Priorities USA through counsel sent a letter to Secretary of State Jocelyn Benson with Defendant copied on the correspondence laying out Priorities USA’s concerns about the Voter Transportation Ban and the Absentee Ballot Organizing Ban. The letter requested an official opinion by Defendant regarding the constitutionality of the statute and generally requested a response by October 21, 2019. Neither Secretary Benson nor Defendant responded to the letter.
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30. On January 11, 2020, Plaintiff Priorities USA through counsel sent a letter to Defendant stating that it is both “contemplating spending money to transport Michigan voters to the polls ... by, among other things, funding local efforts to hire vehicles to transport voters to the polls” and “contemplating deploying staff and volunteers to (1) educate Michigan voters about their options to use and request absent voter ballot applications; (2) distribute absent voter ballot applications; (3) offer to return absent voter ballot applications; and (4) actually return absent voter ballot applications.” Priorities USA expressed concern that these activities would violate the criminal statutes at issue in this litigation. Priorities USA requested that Defendant “commit to not prosecuting Priorities USA, its agents, and others who engage in such activities.” Priorities USA requested a response “to be received no later than January 23, 2020.” Again, Defendant did not respond.
* * * 31. On January 10, 2020 via email and on January 13, 2020 via U.S. first class mail, Plaintiff Priorities USA sent letters to all 83 county prosecutors in the State of Michigan with a duty to enforce the Absentee Ballot Organizing Ban and the Voter Transportation Ban. Mich. Comp. Laws § 169.940. Those letters were substantively identical to the one sent to Defendant, requested an assurance that the prosecutors would not enforce the statutes at issue in this litigation against Plaintiffs if they engaged in activity proscribed by the statute. The letters requested a response by January 23, 2020. Five prosecutors responded but refused to commit to not prosecute. The other seventyeight prosecutors declined to respond.
32. As of the filing of this Amended Complaint, Defendant and the eighty-three county prosecutors responsible for enforcement of the Absentee Ballot
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Organizing Ban and the Voter Transportation Ban continue to refuse to disavow prosecution of Plaintiff Priorities USA and others wishing to engage in activity covered by the challenged statutes. (ECF No. 17, PageID.100-101). Plaintiffs expressly laid out their plans and how their plans violated the statutes at issue. Plaintiffs’ plan involves the expression of core political speech and defendant did not disavow enforcement. See League of Women Voters v. Hargett, 400 F.Supp.3d 706 (M.D. Tenn. 2019) (“[E]ncouraging others to register to vote” is “pure speech,” and, because that speech is political in nature, it is a “core First Amendment activity.”) (quoting League of Women Voters of Fla. v. Browning, 863 F.Supp.2d 1155, 1158 (N.D. Fla. 2012)). It is evident from the amended complaint that plaintiffs are self-censoring based on defendant’s refusal to disavow enforcement. Accordingly, plaintiffs have sufficiently alleged a credible threat of prosecution necessary to support their First Amendment claims. b. Diversion of resources Contrary to defendant’s suggestion that the Sixth Circuit rejected the diversion of resources theory of standing in Fair Elections Ohio v. Husted, the theory is alive and well in this Circuit. As plaintiffs point out, a multitude of cases support this theory. See Mote v. City of Chelsea, 284 F.Supp.3d 863, 887 (E.D. Mich. 2019) (organization had standing when it diverted resources to secure the defendant’s Americans with Disabilities Act compliance, because “that diversion of resources ha[d] impacted its capacity to provide the range of other services that
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it offers to disabled persons”); Zynda v. Arwood, 175 F.Supp.3d 791, 804 (E.D. Mich. 2016) (finding organizational standing due to diversion of resources); Ne. Ohio Coal. for the Homeless (“NEOCH”) v. Husted, 837 F.3d 612, 624 (6th Cir. 2016) (finding standing where the organization “overhauled” its election strategy and redirected its focus to in-person voting instead of absentee voting). In Fair Elections Ohio, the Court found that, in the context of summary judgment, the plaintiff had failed to provide sufficient evidence of a diversion of resources. Plaintiffs here are not yet held to a summary judgment standard and their amended complaint contains a number of examples of how they are diverting resources in order to comply with the statutes at issue. See ECF No. 17, ¶ 26 (Plaintiffs “will have to recruit and train volunteers to drive students to voting rather than renting large capacity vehicles such as buses or leveraging existing resources like the Detroit Bus Company…and Uber”); ¶ 25 (Plaintiffs “are expending and diverting additional funds and resources in GOTV, voter education efforts, mobilization, and turn out activities in Michigan, at the expense of [their] other efforts…in order to combat the effects of the Voter Transportation Ban and the Absentee Ballot Organizing Ban. Plaintiffs are required to expend additional resources and employee time to educate their employees, volunteers, and partners about the Voter Transportation Ban and the Absentee Ballot Organizing Ban to avoid exposing them to criminal prosecution.”). Defendant says these allegations are insufficient,
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pointing to the extensive facts put forth by the plaintiff in Zynda. However, Zynda involved a factual attack on subject matter jurisdiction and thus, the Court considered evidence outside the pleadings. Defendant has not made a factual attack with respect to these claims. Similarly, defendant also points to the factual record in Mote, but that case involved a motion for summary judgment, which places an entirely different burden on the non-moving party. And notably, contrary defendant’s suggestion in the reply, there is no threshold of “significance” of the injury to the organization that must be exceeded to render the harm sufficiently concrete under Article III. Mote, 284 F.Supp.3d at 888. Rather, the Supreme Court holds that even unquantifiable and intangible harms may qualify as injuries in fact, and the impairment of the organizations’ operations need only be “perceptible” to suffice. Id. (citing Havens, 455 U.S. at 379; Spokeo, Inc. v. Robins, ––– U.S. –––, 136 S.Ct. 1540, 1549 (2016)).
Additionally, Fair Elections Ohio is distinguishable in several important respects. First, unlike the present case, the organizational plaintiff in Fair Elections was only asserting the rights of third-parties. Second, the trial court found standing because the plaintiff had learned of the disenfranchisement of late jailed voters (who, unlike those hospitalized just before an election, were not afforded the ability to obtain an absentee ballot if jailed after 6:00 pm on the Friday before Election Day) “late in the game.” Accordingly, the organization was not
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able to modify its voting rights placards or print new supplemental materials and had to use its small staff to teach election volunteers that a pre-election arrest could result in the loss of a chance to vote. Id. at 459. The Court of Appeals observed that the mere fact that the plaintiff organization’s materials and training were inaccurate did not establish constitutional standing because even if relief were granted, the organization would still be required to train its employees correctly on the law and change its materials accordingly. Thus, any injury was not fairly traceable to the defendant’s conduct. Here, most of plaintiffs’ claims are not based on third-party standing and their allegations of diverted resources are not based on being “late to the game.” Rather, they allege that they must recruit volunteers to perform activities (driving voters to the polls) when they could simply purchase such services, absent the Voter Transportation Law. Additionally, they allege that resources spent on combating the effects of the laws could be used for other GOTV activities. Accordingly, the court is not persuaded that Fair Elections Ohio compels it to conclude that plaintiffs here failed to sufficiently allege a diversion of resources theory of standing.
The court is also not persuaded by defendant’s argument that NEOCH is inapplicable here because it involved a recently amended law. While that was a salient point in NEOCH in order to distinguish it from Fair Elections Ohio, the Court does not read NEOCH to suggest that an organization may only challenge
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changes in the law. Indeed, such a suggestion would foreclose untold litigation. See Democratic Party of Ga., Inc. v. Crittenden, 347 F.Supp.3d 1324, 1337 (N.D. Ga. 2018) (“It is immaterial whether the organizational injury resulted from a change in the law or a change in election-year conditions and circumstances that bring into focus potential problems with the state’s statutory framework.”).
And, as plaintiffs point out, the statutes at issue must be viewed in light of the changes in circumstances and technology. The Voter Transportation Law was passed long before hired vehicle transportation in the form of rideshare companies such as Uber and Lyft, and short-term rental companies like ZipCar became part of the modern transportation system. Uber’s rides-to-the-polls promotion, which benefited voters everywhere in the country except for Michigan in 2018, did not exist in 1982 when the law was amended. (ECF No. Dkt. 17, ¶ 41). And the Absentee Ballot Law predates Proposal 3, which dramatically increases the role of absentee ballot voting in Michigan’s elections. (ECF No. 17 ¶¶ 2, 17). The Court thus concludes, under Rule 12(b)(6), that plaintiffs meet the injury-in-fact standard, based on a diversion of resources.
3. Representative Capacity Defendant next asserts that, to the extent plaintiffs are asserting the rights of unidentified non-parties, they cannot meet the Supreme Court’s prudential standing requirements. That is, plaintiffs are attempting to advance the legal rights of others
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(voters and other organizations who are purportedly affected by the laws) and thus, they have alleged no particularized injury.
In response, plaintiffs point out that six of their eight causes of action rely on their own rights and injuries as organizations. The only claims that might be subject to a prudential standing analysis are the claims of undue burden on the fundamental right to vote (Counts III and VII) because plaintiffs assert the legal rights of third-parties – voters themselves. Plaintiffs contend that both DAPRI and Rise have prudential standing to assert these claims. More specifically, plaintiffs argue that DAPRI and Rise have prudential standing to assert the rights of Michigan voters because they enjoy (1) a close relationship between them and the voters who hold the rights; or (2) disallowing them to assert these claims would hinder voters’ ability to protect their own interest. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). Because this is a prudential standing doctrine, the Court has “been quite forgiving with these criteria in certain circumstances.” Id. Plaintiffs aver that such circumstances are at play here, where “enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Id.
The court disagrees with plaintiffs’ analysis. The “forgiving circumstances” referenced in Kowalski are not present here. For example, the First Amendment rights of the non-party voters are not implicated as in Secretary of State of Md. v.
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Joseph H. Munson Co., Inc., 467 U.S. 947 (1984). Nor have plaintiffs identified a “special relationship” between them and the as-yet unidentified voters like the doctor-patient relationship present in Doe v. Bolton, 410 U.S. 179 (1973). Rather, the present circumstances are more like those reviewed in Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2016). In Fair Elections Ohio, the plaintiffs were organizations and could not vote. And just as in this case, the plaintiffs wanted to assert the right to vote of unidentifiable individuals. The Court found neither a “close relationship” between the plaintiff organization and the unidentified voters nor a “hindrance” to the voters’ ability to protect their own rights. Id. at 461 (citing Kowalski, at 129-30). More specifically, the Court concluded that the relationship between the plaintiff organization and the voters it sought to help did not resemble the close relationship of the lawyer-client or doctor-patient relationships recognized by the Supreme Court in Kowalski. Id. Plaintiffs’ contention that they have developed relationships with categories of voters (e.g. “hourly wage workers,” “senior voters,” “low-income voters”) based on their respective missions and outreach efforts in various communities is an unavailing distinction. Plaintiffs have not pointed to any authority suggesting that the type of relationship they have described is sufficiently close to meet the standard. The most that the court can discern from plaintiffs’ description is that the plaintiffs have targeted their efforts toward unidentified future voters within the described
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categories. As to how the targeted voters have come to regard the plaintiffs is left unaddressed. Since, as discussed above, the plaintiffs do not meet the standard for a special relationship, at minimum, a more fulsome picture of their relational dynamics with these future voters is necessary for the court to gauge the “closeness” of the relationship. As it stands, the current picture does not line up with the precedential authority discussed. Plaintiffs suggest that the doctrine of prudential standing has been called into doubt. However, even if true, this court is bound to follow applicable precedent from superior courts. The Supreme Court mandates that when “precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [inferior court] should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions.” Zynda v. Arwood, 175 F.Supp.3d 791, 812 (E.D. Mich. 2016) (quoting Tenet v. Doe, 544 U.S. 1, 10-11 (2005) (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). Accordingly, the court adheres to applicable precedent regarding prudential standing. See EMW Women's Surgical Ctr., P.S.C. v. Meier, 373 F.Supp.3d 807, 826 (W.D. Ky. 2019) (quoting W. Ala. Women's Ctr. v. Williamson, 900 F.3d 1310, 1329 (11th Cir. 2018) (citing U.S. Const. art. III § 1) (“In our judicial system, there is only one Supreme Court, and we are not it. As one of the ‘inferior Courts,’ we follow its decisions.’”).
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Furthermore, plaintiffs’ argument addressing hindrance centers on the difficulties that the persons who their organizations target for outreach have in voting, rather than what, if any, obstacles they might face in asserting their legal rights to bring their claims. (See ECF Nos. 22-5, 22-6). That is, plaintiffs’ argument, and the affidavits on which they rely, focus on the non-parties being hindered from voting, not on them being hindered in challenging the laws, which is part of the core holding in Kowalski. Id. An example of a “hindrance” can be found in NAACP v. Alabama, 357 U.S. 449 (1958), where the Supreme Court held that the NAACP, in resisting a court order that it reveal the names of its members, could assert the First and Fourteenth Amendments rights of its members to remain anonymous. The Court reasoned that “(t)o require that (the right) be claimed by the members themselves would result in nullification of the right at the very moment of its assertion.” Id. at 459; see also Singleton v. Wulff, 428 U.S. 106, 116 (1976). Plaintiffs here have not identified how persons affected by the contested laws are hindered from challenging those laws in the manner prescribed by Kowalski and its antecedents. For these reasons, the court concludes that plaintiffs Rise and DAPRI do not have standing to assert the claims set forth in Counts III and VII of the amended complaint and those claims are dismissed.1
1 Plaintiffs do not claim that Priorities has standing to assert these claims and accordingly, this issue will not be addressed.
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B. Failure to State a Claim 1. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first comply with Rule 8(a)(2), which requires “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A plaintiff is also obliged “to provide the grounds of his entitlement to relief,” which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Association of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555 (citations and internal quotation marks omitted)).
In Iqbal, the Supreme Court explained that a civil complaint only survives a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. And, while a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be
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enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. (quoting Twombly, 550 U.S. at 555 (citation and internal quotation marks omitted)); see also League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (the factual allegations in a complaint need not be detailed but they “must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.”).
2. Absentee Ballot Law The parties disagree on whether the Anderson-Burdick balancing test applies to the inquiry of whether plaintiffs’ complaints about the Absentee Ballot Law state claims of constitutional proportions. The “flexible balancing approach” also known as the Anderson- Burdick framework, after Burdick v. Takushi, 504 U.S. 428 (1992) and Anderson v. Celebrezze, 460 U.S. 780, 789 (1982), “can sometimes make it hard to fit First Amendment challenges to election laws into ordinary constitutional categories.” League of Women Voters v. Hargett, 400 F.Supp.3d 706, 721 (M.D. Tenn. 2019) (citing Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016)). When a state’s law “‘severely’ burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard.” Hargett, 400 F.Supp.3d at 721 (citing Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012) (quoting Burdick, 504 U.S. at 434)). But, in cases with no actual
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burden on a right to vote or other constitutional right, “a straightforward rational basis standard of review should be used.” Id. (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969); Biener v. Calio, 361 F.3d 206, 214-15 (3d Cir. 2004)). As acknowledged in Hargett, “[t]he distinction between ‘severe burdens’ and ‘lesser’ ones,” however, “is often murky,” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016) (citation omitted), and “most cases fall in between these two extremes.” Obama for Am., 697 F.3d at 429.
As explained in Hargett, the rationale for Anderson- Burdick assumes that “‘election cases rest at the intersection of two competing interests,’ namely, an individual’s right to vote versus a state’s prerogative to regulate the right to vote.” Id. (quoting Mich. State A. Philip Randolph Inst. v. Johnson, 749 Fed. Appx. 342, 349 (6th Cir. 2018) (quoting Ohio Democratic Party, 834 F.3d at 626)). Yet, some election-related laws implicate more than those two sets of concerns. Id. Specifically, laws that govern election-related speech and association, go beyond the mere intersection between voting rights and election administration, and turn toward the area where “the First Amendment ‘has its fullest and most urgent application.’” Id. (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). In this area, the Supreme Court applies “exacting scrutiny” rather than Anderson- Burdick when a case involves election-related speech as opposed to “the
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mechanics of the electoral process.” Id. (quoting McIntyre, 514 U.S. at 345, 347 (reviewing law banning the circulation of anonymous literature intended to affect an election).
The Hargett court compared the law at issue before it to those evaluated by the Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988) and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). The statute at issue in Hargett was challenged as unconstitutionally vague under the Fourteenth Amendment and violative of the First Amendment. The challenge targeted key provisions of a statute governing voter registration drives and related activities. In Buckley, the Supreme Court struck down three Colorado restrictions on petition circulators: “(1) the requirement that initiative-petition circulators be registered voters; (2) the requirement that they wear an identification badge bearing the circulator’s name; and (3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator.” 525 U.S. at 186, 205, 119 S.Ct. 636 (citations omitted). Hargett also recognized that the Supreme Court explicitly rejected the argument that the logistical aspects of collecting signatures could be easily separated from the regulation of speech because “[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id. at 723 (quoting Meyer, 486
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U.S. at 421). The Supreme Court concluded that the regulation of the petitiondrive activities at issue “involve[d] a limitation on political expression subject to exacting scrutiny.” Meyer, 486 U.S. at 420 (citing Buckley v. Valeo, 424 U.S. 1, 45 (1976)). “[T]he First Amendment,” the Court explained in Buckley, “requires us to be vigilant” when such activities are regulated, “to guard against undue hindrances to political conversations and the exchange of ideas.” 525 U.S. at 192 (citing Meyer, 486 U.S. at 421). As a result, the Court held that the prohibitions were unconstitutional because they “significantly inhibit[ed] communication with voters about proposed political change, and [were] not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions.” The Court emphasized the laws’ tendency to result in “speech diminution” by “decreas[ing] the pool of potential circulators” of petitions. Id. at 194; see also Bailey v. Callaghan, 715 F.3d 956, 969 (6th Cir. 2013) (referencing Meyer as an example of the rule that the First Amendment applies “not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak”) (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 337 (2010); Meyer, 486 U.S. at 424)).
Importantly, the Sixth Circuit has recognized that the principles elucidated in Meyer and Buckley are not limited to the circulation of initiative petitions. See
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Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 316 (6th Cir. 1998) (applying Meyer- Buckley framework to law governing solicitation of political contributions). The Hargett court concluded that a “person’s decision to sign up to vote is more central to shared political life than his decision to sign an initiative petition.” Id. at 724. Moreover, a discussion of whether to register to vote plainly “implicates political thoughts and expression.” Id. (quoting Buckley, 525 U.S. at 195).
Hargett’s rationale is persuasive. Unlike cases involving the mere administrative process or the mechanics of the electoral process, here, the Absentee Ballot Law, as interpreted by plaintiffs and as set forth in the amended complaint, involves the regulation of political speech. The court sees little difference between discussions of whether to register to vote and discussions of whether to vote absentee. As set forth above, plaintiffs want to deploy staff and volunteers to (1) educate Michigan voters about their options to use and request absent voter ballot applications; (2) distribute absent voter ballot applications; (3) offer to return absent voter ballot applications; and (4) return absent voter ballot applications. Such actions necessarily involve political communication and association, and thus, just as in Hargett, the exacting scrutiny standard found in Meyer and Buckley is applicable here.
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a. Vagueness According to plaintiffs, 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 or offers of assistance that do not explicitly involve a request. Several statutory provisions are implicated by 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 ballot applications to a clerk or assistant of the clerk is guilty of a misdemeanor.” Defendant maintains that the conduct being prohibited is plain and clear. One must not “solicit or request” to return an absentee ballot application. 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 absentee ballot application.
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“[B]asic principles of due process set an outer limit for how vague a statutory command can be if a person is going to be expected to comply with that command.” Hargett, at 727 (citing Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235, 251 (6th Cir. 2018)). Specifically, a statute is unconstitutionally vague under the Fourteenth Amendment if its terms “(1) ‘fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) ‘authorize or even encourage arbitrary and discriminatory enforcement.’” Id. at 246 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). “‘[A] more stringent vagueness test should apply’ to laws abridging the freedom of speech ....” Id. (quoting Vill. of Hoffman 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 criminal penalties and includes an implicit scienter requirement.” Id. (citing Hoffman Estates, 455 U.S. at 499).
Defendant contends that plaintiffs could make a factual recitation of a voters’ right to request assistance in conjunction with delivering an application and thus, the statute is not vague. Yet, does so strictly limiting plaintiffs’ ability to speak about the absentee ballot application process cure any vagueness challenge? Essentially, defendant’s interpretation bars all explanation or communication except a rote recitation of the statute’s language. This interpretation exemplifies
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why the term “solicitation” in this context might be unconstitutionally vague. The
term may be perfectly understood in some contexts, see e.g., Platt v. Bd. of
Commissioners on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235,
261 (6th Cir. 2018), but deemed vague in other contexts. Here, the statute does not
explain what is meant by the ban on solicitation and accordingly “does not
sufficiently specify what those within its reach must do in order to comply.”
Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 621 (1976). As
plaintiffs explain in their brief:
Presumably an individual solicits or requests to assist a voter when he says, “May I return your absentee ballot application for you?” But what about if an individual tells a voter “I would be happy to return your absentee ballot application for you” or “I am returning your neighbor’s absentee ballot application” or “I am forbidden from ‘soliciting’ or ‘requesting’ to return your absentee ballot application, so I can’t ask you, but if you ask me then I would be happy to assist”? Although none can be banned under the First Amendment, … it is not clear which, if any, the challenged provision permits.
(ECF No 40, PageID.770). The court concludes that plaintiffs have plausibly
alleged that even if the law covers only a narrow range of conduct as described by
defendant (only formal, direct requests to assist), the apparent inexactness of the
statutory ban on solicitation may capture a broader range of speech and
association. Accordingly, at this stage of the proceedings, plaintiffs have
sufficiently stated a claim for unconstitutionally vagueness.
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Defendant also contends that even if the statute could be applied to more
conduct or speech, this court could provide a limiting construction of the statute to
include only the conduct encompassed within a common understanding of the
statute’s words.2 It does not appear, however, that such a proffered limiting
construction is generally addressed in the context of a motion to dismiss. The
cases on which defendant relies were postured in other procedural contexts,
including summary judgment, after an evidentiary hearing, and an appeal from a
post-trial conviction. See Green Party of Tenn. v. Hargett, 700 F.3d 816 (6th Cir.
2012) (summary judgment); Grayned v. City of Rockford, 408 U.S. 104 (1972)
(appeal from post-trial conviction); Broadrick v. State of Okl. ex rel. Oklahoma
State Pers. Bd., 338 F. Supp. 711, 714 (W.D. Okla. 1972), aff’d sub nom.
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (affirmed by Supreme Court after
evidentiary hearing below). Other cases address a limiting construction in the
2 Defendant’s argument may be inartfully worded, but in circumstances such as those presented in this case, such a limiting construction is not typically provided by the court. As explained in Belew v. Giles Co. Adult-Oriented Establishment Board, 2005 WL 6369661 (M.D. Tenn. Sept. 30, 2005), due to concerns of federalism that arise when a federal court reviews the constitutionality of a state regulation that is challenged as unconstitutionally vague or overbroad, the reviewing court may not supply a limiting construction in order to save the regulation from being unconstitutional. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 136 (6th Cir. 1994) (citing Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991) for the proposition that “federal ‘courts do not rewrite statutes to create constitutionality.’”). Rather, such a limiting construction must come from a state court or enforcement agency. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)) (In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.).
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context of hearings/trials on preliminary or permanent injunctions. See e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) (Preliminary injunction hearing/trial held below); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 136 (6th Cir. 1994) (Motion for permanent injunction). Accordingly, in the court’s view, this issue is best left addressed in the context of the parties’ pending motion for preliminary injunction.
b. Burden on Speech and Association Defendant maintains that essentially, the Absentee Ballot Law only implicates conduct and its burden on speech is minimal. However, as set forth above in detail, it is difficult to distinguish the political speech at issue here from that in Hargett, Meyer, and Buckley. Accordingly, the court rejects defendant’s “conduct only” argument. Defendant also argues that any burden caused by the law is minimal and is outweighed by the State’s interest “in preserving the integrity of the ballot application process.” (ECF No. 27, PageID.418). To withstand exacting scrutiny, the Absentee Ballot Law must have a substantial relationship with a “sufficiently important” governmental interest. Citizens United, 558 U.S. at 340; John Doe #1 v. Reed, 561 U.S. 186, 196 (2010) (“[T]he strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”). Defendant argues that the Absentee Ballot Law preserves the integrity of absentee voting by increasing the likelihood that a voter will entrust
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her application with someone who is trustworthy and accountable. According to plaintiffs, this argument requires the court to resolve a factual dispute—that is, whether a registered voter is more or less trustworthy than an unregistered voter— which is beyond the scope of a 12(b)(6) motion. Sims v. Mercy Hosp. of Monroe, 451 F.2d 171, 173 (6th Cir. 1971). And, plaintiffs point out that whether a voter requests assistance from a stranger or is solicited by a stranger to provide assistance, a voter still decides to entrust a stranger with delivering an application, which undermines’ defendant’s position.
Plaintiffs maintain that the Absentee Ballot Law is insufficiently tailored to address the State’s interest in preventing voter fraud as it targets the application process, not the casting of ballots. Plaintiffs also point out that Michigan has robust laws protecting absentee voting and also “retains an arsenal of safeguards” to prevent voting fraud. Buckley, 525 U.S. at 204. There are seven Michigan criminal laws that address voting fraud, including laws that specifically target absentee voting fraud, which plaintiffs argue dramatically diminishes the need for the Absentee Ballot Law. See Buckley, 525 U.S. at 204–05 (relying on alternatives also in place to prevent fraud including criminal penalties in striking down a restriction on political expression); Meyer, 486 U.S. at 427 (same).
Plaintiffs also argue that the registration requirement is not fairly designed to serve any important government interest, as the Buckley decision recognized in
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similar circumstances when it struck down a Colorado law allowing only registered voters to circulate initiative petitions because it was likely to result in “speech diminution.” Id. at 193-94. There, the record reflected that there were 400,000 voting eligible persons who were not registered to vote. Id. at 193. The Supreme Court therefore concluded that “[b]eyond question, Colorado’s registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions.” Id. at 183. Here, plaintiffs allege that there are at least 750,000 persons who are eligible to vote but are not registered to vote residing in Michigan. (ECF No. 17 ¶ 70). And there are millions of U.S. citizens who do not reside in Michigan, some of whom would participate in plaintiffs’ efforts to encourage and assist voters to vote absentee but for the registration requirement. Plaintiffs maintain that the registration requirement should suffer the same fate as the registration requirement in Buckley. Whether or not plaintiffs ultimately prevail on this basis, considering the cases discussed above, plaintiffs have stated a claim under the First Amendment.
The Absentee Ballot Law also proscribes non-family or household members from soliciting or requesting to help a voter to return an absentee ballot application. Mich. Comp. Laws § 168.759(4), (5). Plaintiffs maintain that this ban is subject to strict scrutiny because it operates differently based on the identity of the speaker, see Citizens United, 558 U.S. at 340-41, and because it is a content-
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based restriction on speech. Burson v. Freeman, 504 U.S. 191, 197 (1992) (ban on an entire subject is content-based and subject to strict scrutiny). Regardless of which level of scrutiny applies, defendant does not explain how the requirement for delivery by a “registered elector” helps to ensure that the voter’s application is properly delivered and that the voter identified on the application does want to obtain and vote by absentee ballot. Accordingly, plaintiffs have stated claim under the First Amendment.
c. Preemption Plaintiffs’ amended complaint alleges that § 208 of the Voting Rights Act preempts the Absentee Ballot Law because it prohibits voters with limited English proficiency or some disability from receiving assistance from persons of their choice. (ECF No. 17, ¶¶ 71-77 (Count IV)). According to the amended complaint, the Absentee Ballot Law (1) completely bars certain individuals from providing voters with assistance and (2) categorically prohibits persons who would otherwise be eligible from providing assistance to a voter if they asked to provide help to do so. (ECF No. 17 ¶¶ 75–76). Defendant maintains that no conflict exists. Section 208 provides:
Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.
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52 U.S.C. § 10508. The VRA defines the terms “vote” and “voting” to include: [A]ll action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
52 U.S.C. § 10310. Conflict preemption occurs where compliance with both a federal and state
regulation is physically impossible, or “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992). According to defendant, § 208 plainly contemplates that it is the voter who is seeking the assistance. And, § 759 also contemplates that it is the voter who will request someone else to return their AV ballot application. Accordingly, defendant argues that the prohibition against a person actively soliciting to return a voter’s application without a preceding request by the voter to do so does not conflict with the voter’s rights under § 208 to affirmatively seek assistance.
Plaintiffs allege that it is impossible for the two laws to coexist. Section 208 expressly provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” 52 U.S.C. § 10508. But the Absentee Ballot Law
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restricts who a voter may choose to assist them in voting. Defendant’s argument misses the primary point -- § 759 does not permit a voter to request just anyone to assist them. Rather, unless the person is a member of the voter’s household or family, or an elector registered in Michigan, a voter cannot seek his or her assistance. Section 208, on the other hand, provides that a voter may be given assistance by anyone of that voter’s choice. See e.g., Project Vote v. Blackwell, 455 F.Supp.2d 694, 703 (N.D. Ohio 2006) (The pre-registration, training, and affirmation requirements imposed by Ohio law for only a selected class of persons (those who are compensated for registering voters) conflicted with the National Voting Registration Act’s requirement that State programs to protect election integrity must be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.”). Given this apparent conflict, which defendant does not propose to resolve, at a minimum, plaintiffs have stated a claim for preemption.
3. Voter Transportation Law Plaintiffs argue the same standard applies to the court’s review of the Voter Transportation Law as the Absentee Ballot Law. They argue that the Voter Transportation Law regulates political expression protected by the First Amendment because it regulates political spending; that is, the Transportation Law imposes an unconstitutional $0 spending limit on transporting voters to the polls. (ECF No. 17 ¶ 44). Plaintiffs maintain that the act of transporting voters to the
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polls is a recognized element of voter registration and get-out-the-vote drives. See e.g., 11 C.F.R. § 114.4(d)(1) (“Voter registration and get-out-the-vote drives include providing transportation to the polls or to the place of registration.”). They also point to Emily’s List v. Fed. Election Comm’n, which observed that people “are entitled to spend and raise unlimited money for” “advertisements, get-out-thevote efforts, and voter registration drives.” 581 F.3d 1, 16 (D.C. Cir. 2009). Because it is an element of get-out-the-vote efforts, plaintiffs allege that the act of spending money to transport voters to the polls is political speech protected by the First Amendment. See id.; see also Buckley v. Valeo, 424 U.S. 1, 23 (1976) (noting that “expenditure ceilings impose . . . severe restrictions on protected freedoms of political expression and association”). Additionally, the Transportation Law regulates rides-to-the-polls efforts, which are a common organizing activity for political organizations who seek to encourage political activity. (ECF No. 17 ¶ 35). Accordingly, plaintiffs maintain that the conduct regulated by the Voter Transportation Law is protected political expression under the same body of case law that applies to the Absentee Ballot Law discussed above. The court agrees and the same exacting scrutiny standard is applicable.
a. Vagueness The Voter Transportation Law provides as follows:
(f) A person shall not hire a motor vehicle or other conveyance or cause the same to be done, for conveying
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voters, other than voters physically unable to walk, to an election. Mich. Comp. Laws § 168.931(1)(f). A person who violates this provision is guilty of a misdemeanor. Mich. Comp. Laws § 168.931(1). Defendant acknowledges that the statute does not define the term “hire” but points to a Michigan Court of Appeals decision interpreting 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 of Am, Inc., 2008 WL 2357643, at *3 (Mich. App. June 10, 2008) (quoting Random House Webster’s College Dictionary (1997)). According to defendant, the statute means that a person cannot engage the service of a vehicle for a fee to transport a voter to an election unless the voter is physically unable to walk to the election. But the statute does not otherwise prohibit a person from paying for expenses incurred in transporting a voter by vehicle so long as it does not amount to hiring for the service. Defendant maintains that this interpretation renders the statute understandable by a person of ordinary intelligence according to the common meaning of its words and thus, it is not vague. Plaintiffs maintain that defendant does not define what it means to “hire” a vehicle; instead she only lists activities that the Transportation Law does not prohibit: ECF No. 27 at 45 (paying for expenses); ECF No. 27 at 49 (paying for gas); ECF No. 27 at 41 (using company or personal vehicles driven by employees
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or volunteers); ECF No. 27 at 49 (providing free rides to the polls). Plaintiffs contend that these pronouncements make it no more clear to plaintiffs, other citizens, and law enforcement, what is allowed and not allowed.
As explained above, “basic principles of due process set an outer limit for how vague a statutory command can be if a person is going to be expected to comply with that command.” Hargett, at 727 (citing Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235, 251 (6th Cir. 2018)). Specifically, a statute is unconstitutionally vague under the Fourteenth Amendment if its terms “(1) ‘fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) ‘authorize or even encourage arbitrary and discriminatory enforcement.’” Id. at 246 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). “‘[A] more stringent vagueness test should apply’ to laws abridging the freedom of speech ....” Id. (quoting Vill. of Hoffman 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 criminal penalties and includes an implicit scienter requirement.” Id. (citing Hoffman Estates, 455 U.S. at 499).
Defendant’s very argument illustrates why plaintiffs have plausibly set forth facts demonstrating the Transportation Law may be unduly vague. It is simply not clear whether plaintiffs can contract with Uber to transport a voter and claim that it
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is merely paying for “expenses” associated with transportation or whether an employee can provide rides to the polls while earning a salary or being paid hourly. Accordingly, the court concludes that plaintiffs have stated a claim that the Transportation Law is unconstitutionally vague.
The court must briefly address an issue defendant raised in the reply brief. In the reply, defendant articulates, for the first time, her proposed limiting construction that the Transportation Law only captures quid pro quo activities; that is, it only bans paying for rides to the polls where that expenditure is made in exchange for a vote on an issue or for a candidate. The court will not, however, address an issue raised for the first time in the reply. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“Raising the issue for the first time in a reply brief does not suffice; reply briefs reply to arguments made in the response brief—they do not provide the moving party with a new opportunity to present yet another issue for the court’s consideration. Further the non-moving party ordinarily has no right to respond to the reply brief, at least not until oral argument. As a matter of litigation fairness and procedure, then, we must treat [such issues] as waived.”). Moreover, as explained above, it does not appear that such a proffered limiting construction is generally addressed in the context of a motion to dismiss. Thus, as concluded above with regard to the limiting construction offered
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for the Absentee Ballot Law, this issue is best left addressed in the context of the parties’ pending motion for preliminary injunction.
b. Burden on Speech and Association Defendant maintains that driving a voter to an election is not speech. The Court disagrees. As set forth above, the Transportation Law regulates political expression/spending. Defendant also contends that any burden is minimal and is outweighed by the State’s interest in protecting voters from undue influence, helping to preserve the integrity of Michigan’s elections. Defendant points to the number of ways a voter can receive free transportation to the polls and asserts that plaintiffs can cover driver expenses. According to defendant these minimal burdens are far outweighed by the State’s interest in protecting voters from undue influence from any perceived “quid pro quo” arrangements when drivers are paid to take voters to the polls. Plaintiffs maintain that the Transportation Law is not, as required, “closely drawn to serve a cognizable anti-corruption interest.” Emily’s List, 581 F.3d at 18 (citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008); Valeo, 424 U.S. at 26–27). For example, under defendant’s interpretation of the law, a private bus company could provide free rides to the polls, but plaintiffs could not hire that same bus company to provide free rides to the polls. Plaintiffs point out that the Supreme Court has rejected the notion paid petition circulators are more likely to
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engage in corrupt behavior than a volunteer circulator (Meyer, 486 U.S. at 426). Accordingly, it is of questionable reasoning to suggest that paying drivers to transport voters to the polls contributes to corruption more than using employee or volunteer drivers.
Additionally, under exacting scrutiny, the State must show that the Voter Transportation Law bears a substantial relationship to a sufficiently important governmental interest. In the court’s view, plaintiffs have stated a claim that the Voter Transportation Law is not substantially related to preventing quid pro quo corruption, or to preventing the exercise of “undue influence” on voters. The Voter Transportation Law does not, apparently, prohibit providing free transportation to voters, which would also confer a benefit of value on voters. Defendant also suggests that the law does not prohibit paying for transportation expenses. Yet, the law bans any hired transportation to the polls even if the ride is unrelated to support for a particular candidate or issue. And, as plaintiffs correctly point out, the State’s interest in preventing quid pro quo arrangements is addressed in other laws on the books. See Buckley, 525 U.S. at 204-05 (relying on alternatives also in place to prevent fraud including criminal penalties in striking down a restriction on political expression). Indeed, Michigan Law makes it a crime to actually enter into a quid pro quo arrangement with a voter, Mich. Comp.
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Laws § 168.932(a), or to promise or receive something of value for deciding for whom to vote, id. § 168.931(1)(a), (b).
Importantly, plaintiffs’ amended complaint alleges that the Transportation Law poses a significant burden on rides-to-the-polls efforts. The diminution of such opportunities is unconstitutional. See Meyer, 486 U.S. at 416; Buckley, 525 U.S. at 193. In Meyer and Buckley, the Supreme Court reasoned that the challenged laws would diminish political expression by shrinking the pool of people available to assist the proponents of initiative petitions. Buckley, 525 U.S. at 194; Meyer, 486 U.S. at 423. Similarly, plaintiffs plausibly allege that because Michigan law limits the options available to ride organizers, the number of voters that organizers can transport is necessarily diminished as is their opportunities for political engagement and interaction. (ECF No. 17 ¶¶ 24, 38, 92). Accordingly, plaintiffs have stated a claim that the Voter Transportation Law is an impermissible burden on expressive activity.
c. Preemption Defendant maintains that the Transportation Law is not expressly preempted by federal law, specifically 11 C.F.R. § 114.4, which provides:
Voter registration and get-out-the-vote drives permitted. A corporation or labor organization may support or conduct voter registration and get-out-the-vote drives that are aimed at employees outside its restricted class and the general public. Voter registration and get-out-the-vote
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drives include providing transportation to the polls or to the place of registration. Defendant argues that the federal provision permits plaintiffs to provide transportation to the polls, as does the state statute. Defendant asserts that plaintiffs can utilize its employees or volunteers to provide such rides. They are only barred from “hiring” or paying a person or entity to transport voters to the polls, unless the voters are physically unable to walk to the polls. Defendant maintains that the federal statute does not guarantee plaintiffs the right to “hire” or pay a person or entity to transport voters, only the opportunity to “provide” transportation. Plaintiffs’ argument is more focused than as characterized by defendant. Here, plaintiffs argue that the Federal Election Campaign Act (FECA) expressly preempts the Transportation Law. “Express preemption exists where either a federal statute or regulation contains explicit language indicating that a specific type of state law is preempted.” State Farm Bank v. Reardon, 539 F.3d 336, 34142 (6th Cir. 2008). FECA, which provides a uniform national regulation of political spending in federal elections, contains an express preemption provision that states, in relevant part, that “the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.” 52 U.S.C. § 30143. The scope of preemption was
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further defined by the Federal Elections Commission in 11 C.F.R. § 108.7. Section 108.7 incorporates FECA’s preemption statute and provides:
(b) Federal law supersedes State law concerning the— * * *
(3) Limitation on contributions and expenditures regarding Federal candidates and political committees. Plaintiff’s amended complaint alleges that the Voter Transportation Law functions as a limitation on expenditures by criminalizing disbursements for providing transportation to the polls for all elections including federal elections. Weber v. Heaney, 793 F.Supp.1438, 1452 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) (finding that § 108.7 is “probably the most persuasive evidence that [FECA’s preemption provision] was intended to preempt all state laws purporting to regulate congressional campaign expenditures”). Because the Voter Transportation Law attempts to regulate permissible expenditures in federal elections, plaintiffs contend that it is expressly preempted. (ECF No. 17, ¶¶ 4447). Given the plausible conflict between FECA’s express preemption of state laws on political expenditures and the Transportation Law’s limitation on expenditures for transportation to the polls, which is a permissible expenditure in federal elections, plaintiffs have stated a claim for express preemption. Plaintiffs have also stated a claim for conflict preemption. Plaintiffs point to two federal regulations promulgated pursuant to FECA expressly permitting disbursements to provide transportation to the polls for voters. 11 C.F.R.
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§ 114.3(c)(4)(i) (permitting corporations to make disbursements to provide transportation to the polls for certain employees and establishing the scope of permissible express advocacy); id. § 114.4(d)(1) (permitting corporations to make disbursements to provide transportation to the polls for the general public and employees outside the restricted class covered by 11 C.F.R. § 114.3). Plaintiffs concede that the text of these regulations permits corporations to “provide” transportation, significantly, it does so in the context of making “disbursements,” that is, spending money, to provide these services. Accordingly, the court agrees with plaintiffs that they have stated claim for preemption based on the plausibly alleged conflict between the Voter Transportation Law and the federal regulations allowing corporations to use funds to provide transportation to the polls.
C. Declaratory Relief Defendant asserts that plaintiffs have not sufficiently alleged that a prosecution by the Attorney General, or any local prosecutor for that matter, is imminent or likely to come to pass under § 931(1)(f) or § 759(3)(8), and therefore, this case is not ripe for a pre-enforcement review under the Declaratory Judgment Act. See United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir.1988) (articulating factors to consider regarding ripeness). Defendant also argues that the factual record in this case is not sufficiently developed to permit a fair and complete hearing as to plaintiffs’ prospective claims
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as to these statutes. Id. And finally, no significant hardship will result to plaintiffs should this Court refuse to consider these prospective claims. Id.
In response, plaintiffs maintain that they have alleged an ongoing injury in that the challenged laws have and will force them to divert resources, (ECF No. 17, ¶ 25), and that the challenged laws have chilled conduct in which plaintiffs would have otherwise engaged. (ECF No. 17, ¶¶ 7–17, 24–26). That ongoing impact makes plaintiffs’ claims ripe for review. Plaintiffs also contend that defendant misconstrues the purpose of the Declaratory Judgment Act. As Justice Rehnquist noted, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Steffel v. Thompson, 415 U.S. 452, 480 (1974) (Rehnquist, J., concurring). The law does not “require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). In such cases, plaintiffs can eliminate the threat of prosecution by not doing what they claim the right to do, but that “[does] not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced.” Id. The “very purpose” of the Declaratory Judgment Act is to ameliorate “[t]he dilemma posed by that
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coercion—putting the challenger to the choice between abandoning his rights or risking prosecution.” Id. at 130 (internal quotation marks omitted).
In the court’s view, plaintiffs’ argument carries the day. As the Sixth Circuit has held, pre-enforcement review is usually granted under the Declaratory Judgment Act when a statute “imposes costly, self-executing compliance burdens or if it chills protected First Amendment activity.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (quoting Minnesota Citizens Concerned for Life v. Federal Election Comm’n, 113 F.3d 129, 132 (8th Cir. 1997)). The Declaratory Judgment Act provides federal courts with the discretion to “declare the rights and other legal relations of any interested party seeking such declaration....” Louisville City Sch. Dist. Bd. of Educ. v. Ohio Ass’n of Pub. Sch. Employees (OAPSE)/AFSCME Local 4 AFL-CIO, 2020 WL 1930131, at *4 (N.D. Ohio Apr. 21, 2020); 28 U.S.C. § 2201(a). But the Declaratory Judgment Act does not “create an independent basis for federal subject matter jurisdiction.” Heydon v. MediaOne of Se. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003). The Declaratory Judgment Act provides that a district court may declare the rights and legal relations of the parties, so long as there is an “actual controversy....” 28 U.S.C. § 2201(a). “The ‘actual controversy’ requirement under the Declaratory Judgment Act is coextensive with Article III’s case or controversy requirement.” Hayden v. 2K Games, Inc., 375 F. Supp. 3d 823, 829 (N.D. Ohio 2019) (citing Teva Pharm.
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USA, Inc. v. Novartis Pharm. Corp., 482 F.3d 1330, 1338 (Fed. Cir. 2007)). As

such, federal courts must ensure that all suits, including those seeking a declaratory

judgment, satisfy the longstanding justiciability requirements of standing, ripeness,

and mootness. See Nat. Rifle Ass’n of Am. v. Magaw, 132 F.3d at 279-80. As set

forth above in great detail, the court has already assessed that plaintiffs have

sufficiently alleged standing in this matter. Defendant’s perfunctory argument that

the claims before this Court are not ripe have already been addressed above in the

context of standing. Contrary to defendant’s argument, plaintiffs are not required

to risk prosecution (in order to presumably “develop” the record) when they have

sufficiently alleged that they are refraining from protected First Amendment

activity, as proscribed by the statutes at issue in this case.

Accordingly, for the reasons set forth above, defendant’s motion to dismiss

the amended complaint is GRANTED in part and DENIED in part. Counts III

and VII are DISMISSED and all remaining counts are left intact.

IT IS SO ORDERED.

Date: May 22, 2020

s/Stephanie Dawkins Davis Stephanie Dawkins Davis United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, et al.,

Case No. 19-13341

Plaintiffs, v.

Stephanie Dawkins Davis United States District Judge

DANA NESSEL,

Defendant. ________________________/

OPINION AND ORDER GRANTING MOTIONS TO INTERVENE (ECF Nos. 33, 39)

This case involves constitutional challenges to Michigan’s absentee voter

law, Mich. Comp. Laws § 168.759, and voter transportation law, Mich. Comp.

Laws § 168.931, filed by plaintiffs Priorities USA (Priorities), Rise, Inc. (Rise),

and Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI).1 The

Michigan Republican Party (MRP) and the Republican National Committee (RNC)

(ECF No. 33) as well as the Michigan Senate and Michigan House of

Representatives (“the Legislature”) (ECF No. 39) move to intervene in this case as

of right or for permissive intervention pursuant to Federal Rule of Civil Procedure

24. The plaintiffs oppose the MRP’s, the RNC’s, and the Legislature’s

1 The Court summarized the factual background of this case in a contemporaneous opinion and order regarding defendant Dana Nessel’s motion to dismiss, and in lieu of restating the same, relies on the recitation contained therein for purposes of the instant motions. (See ECF No. 59).
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intervention in this case (ECF Nos. 43, 48); Nessel opposes the MRP’s and the RNC’s intervention (ECF No. 42) but remained silent concerning the Legislature’s proposed intervention. The MRP, the RNC, and the Legislature have filed reply briefs in support of their motions. (ECF Nos. 46, 49). The Court conducted a hearing regarding the instant motions to intervene on Friday, May 8, 2020, at 11:00 a.m. I. GOVERNING LAW
Intervention as of right is governed by Federal Rule of Civil Procedure 24(a), which provides, in relevant part, that on timely motion, a court must permit anyone to intervene who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). The Sixth Circuit has interpreted this language “to require an applicant to show that: 1) the application was timely filed; 2) the applicant possesses a substantial legal interest in the case; 3) the applicant’s ability to protect its interest will be impaired without intervention; and 4) the existing parties will not adequately represent the applicant’s interest.” Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011) (citing Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999)).
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Rule 24(b) governs permissive intervention and provides that a court may, on timely motion, permit anyone to intervene who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Stated differently, “a proposed intervenor must establish that the motion for intervention is timely and alleges at least one common question of law or fact.” United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005) (citing Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997)). “Once these two requirements are established, the district court must then balance undue delay and prejudice to the original parties, if any, and any other relevant factors to determine whether, in the court’s discretion, intervention should be allowed.” Id.
Because the Court finds that the proposed intervenors meet the requirements for permissive intervention, it need not address whether they are entitled to intervene as of right. See League of Women Voters of Michigan v. Johnson, 902 F.3d 572, 577 (6th Cir. 2018); Priorities USA v. Benson, No. 19-13188, 2020 WL 1433852, at *9 (E.D. Mich. Mar. 24, 2020); Ohio A. Philip Randolph Inst. v. Smith, No. 1:18cv357, 2018 WL 8805953, at *1 (S.D. Ohio Aug. 16, 2018).
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II. ANALYSIS
A. Timeliness
The first inquiry is whether the motions to intervene are timely. Courts
evaluate five factors in determining the timeliness of an application to intervene:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors’ failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Stupak-Thrall v. Glickman, 226 F.3d 467, 473 (6th Cir. 2000) (quoting Jansen v.
City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)). “No single factor is
determinative; instead, timeliness ‘should be evaluated in the context of all
relevant circumstances.’” Equal Employment Opportunity Comm’n v. R.G. & G.R.
Harris Funeral Homes, Inc., No. 16-2424, 2017 WL 10350992, at *1 (6th Cir.
Mar. 27, 2017) (quoting Stupak-Thrall, 226 F.3d at 472-73).
Priorities filed its complaint on November 12, 2019. (ECF No. 1). After a
stipulated two-week extension, Nessel filed a motion to dismiss the complaint on
December 20, 2019, based in part on a lack of standing. (ECF Nos. 6, 10). On
December 23, 2019, District Judge Mark A. Goldsmith entered an order regarding
the motion to dismiss, permitting Priorities to file an amended complaint to correct
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the deficiencies alleged by defendant within 21 days or otherwise respond to the motion to dismiss in due course. (ECF No. 13). That time was twice extended via stipulation and order, and on January 27, 2020, Priorities filed an amended complaint, adding Rise and DAPRI as plaintiffs. (ECF Nos. 15, 16, 17). The plaintiffs filed a motion for a preliminary and permanent injunction and a motion to expedite this case the next day. (ECF Nos. 22, 23). Nessel filed a motion to dismiss the amended complaint on February 10, 2020. (ECF No. 27). On February 11, 2020, the Court denied the plaintiffs’ motion to expedite without prejudice and set an abbreviated briefing schedule for Nessel’s motion to dismiss, requiring a response by February 24, 2020, and a reply by February 28, 2020. (ECF No. 29). The MRP and the RNC filed their motion to intervene on February 19, 2020, and the Legislature filed its motion to intervene on February 27, 2020. (ECF Nos. 33, 39).
Given the trajectory of the case thus far, the Court finds that the motions to intervene are timely. The MRP, the RNC, and the Legislature moved to intervene in this case within a month of the filing of the amended complaint, and just weeks after Nessel filed her second motion to dismiss. Additionally, the Court has not issued a scheduling order or held a Rule 26(f) conference in this matter, and little to no discovery has taken place.
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The MRP, the RNC, and the Legislature move to intervene as party defendants and for permission to file responsive pleadings to the amended complaint and/or to respond to Nessel’s motion to dismiss. They filed their motions to intervene while this case was still in its pleading stages, before the briefing on the plaintiffs’ motion for a preliminary and permanent injunction and Nessel’s motion to dismiss was complete, and before the Court began considering the merits of those motions. Thus, the MRP, the RNC, and the Legislature have moved to intervene at an appropriate juncture in this case to achieve their purposes.
There is some indication that the MRP, the RNC, and the Legislature knew of this litigation at or around its outset. (See ECF No. 43, PageID.833 (citing https://detroit.cbslocal.com/2019/11/13/suit-seeks-to-block-michigan-restrictionson-helping-voters/); ECF No. 48, PageID.898 (citing Priorities USA v. Benson, Case No. 19-13188, ECF No. 7, PageID.43 (E.D. Mich. Nov. 27, 2019))). The proposed intervenors do not dispute this. When asked at the hearing why they did not move to intervene sooner, the MRP and the RNC explained that their interest in intervening heightened upon the filing of the amended complaint – when Rise and DAPRI joined in this action as plaintiffs. The Legislature explained a more strategic approach, first moving to intervene in Priorities USA v. Benson, Case No. 19-13188 (E.D. Mich. 2019), the first of three close-in-time cases filed by Priorities relating to Michigan’s election laws, before moving to intervene in this
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case. These stated reasons tend to dispel suggestions of bad faith or intentional delay on the part of the proposed intervenors.2 In light of these reasons and the rapidly changing procedural posture of this case prior to the filing of the instant motions, the Court does not find the proposed intervenors’ failure to move sooner to be so unreasonable as to weigh against the timeliness of the motions.
In arguing that the MRP’s and the RNC’s motion to intervene is untimely, Nessel does not assert any specific prejudice resulting from the timing of their motion. Rather, she expresses concern about having her pending motion to dismiss heard and resolved as efficiently as possible without unnecessary delay. (ECF No. 42, PageID.810). This concern is resolved by the Court’s contemporaneous ruling on the motion to dismiss. The bulk of the prejudice asserted by the plaintiffs, i.e., complication and further delay of the proceedings, primarily results not from the delay in filing the instant motions but from the intervention itself. This asserted prejudice will be fully addressed below.
Finally, the Court finds no unusual circumstances in terms of timeliness that militate against or in favor of intervention. For this and the reasons discussed above, the Court finds that the MRP, the RNC, and the Legislature have timely moved to intervene in this case.
2 The Court expresses no opinion as to the underlying merit of the proposed intervenors’ reasons for not moving to intervene sooner.
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B. Common Question of Law or Fact Having determined that the motions to intervene are timely, the Court now turns to the question of whether the MRP’s, the RNC’s, and the Legislature’s claims and defenses allege at least one common question of law or fact. They do. The motions to intervene and the proposed responsive pleadings filed by the MRP, the RNC, and the Legislature demonstrate that they seek to defend the constitutionality of Michigan’s voter transportation and absentee voter laws, the same laws which the plaintiffs allege are unconstitutional.3 (See ECF Nos. 33, 35, 39, 39-1). See also Miller, 103 F.3d at 1248 (Chamber of Commerce’s claim that amendments to Michigan’s Campaign Finance Act were valid presented a question of law common to the main action challenging the constitutionality of those amendments). Neither the plaintiffs nor Nessel dispute that this factor is met. C. Undue Delay or Prejudice The plaintiffs argue that allowing the MRP, the RNC, and the Legislature to intervene will prejudice them and the public at large by delaying and complicating these proceedings while providing no meaningful benefit to the Court, the existing parties, or the interests of justice. The plaintiffs assert in this regard that they have a critical need in the speedy resolution of this case, and allowing intervention by
3 The MRP and the RNC improperly filed their proposed answer to the amended complaint on the docket (ECF No. 35) rather than as an exhibit to their motion to intervene, and it will be stricken accordingly.
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the MRP, the RNC, and the Legislature will create an “intractable procedural mess” resulting from additional briefing, discovery, and litigation strategies, and will diminish the likelihood that this case will be resolved before the November 2020 election. (ECF No. 43, PageID.834-835, 836-837; ECF No. 48, PageID.899, 900). In support, the plaintiffs cite League of Women Voters of Michigan v. Johnson, No. 2:17-cv-14148, 2018 WL 3861731, at *2 (E.D. Mich. Aug. 14, 2018) (finding that potential conflicts in litigation strategy could be prejudicial to the original parties) and Serv. Emps. Int’l Union Local 1 v. Husted, 515 F. App’x 539, 542 (6th Cir. 2013) (finding denial of permissive intervention appropriate where motion was filed weeks after pleadings and preliminary injunction briefing because delay would pose “a significant risk of upsetting the expedited schedule necessitated by the upcoming election”).
The MRP and the RNC assert that they do not seek to cause any delay or reopen settled issues, their defenses are unlikely to require discovery or an evidentiary hearing, and they will submit all filings in accordance with any briefing schedule imposed by the Court. (ECF No. 33, PageID.511, 523).
The Court acknowledges the plaintiffs’ sense of urgency and interest in reaching a prompt resolution prior to the November 2020 election. The Court also recognizes that permitting intervention by the MRP, the RNC, and the Legislature will compound these proceedings and cause some delay and prejudice to the
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original parties. However, a “district court [has] broad discretion in setting the precise scope of intervention,” Buck v. Gordon, No. 19-1959, 2020 WL 2316677, at *6 (6th Cir. May 11, 2020) (quoting United States v. City of Detroit, 712 F.3d 925, 933 (6th Cir. 2013)), and in controlling its own docket, In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996) (“Matters of docket control and conduct of discovery are committed to the sound discretion of the district court.”). And the Court finds that the plaintiffs’ concerns of delay and prejudice can be addressed through proper limitation and docket control such that any delay and prejudice caused by the MRP’s, the RNC’s, and the Legislature’s intervention will not be undue. See United States v. Detroit, 712 F.3d at 932.
D. Other Relevant Factors The proposed intervenors’ legal interests in this case are relevant to the Court’s consideration of permissive intervention. See Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir. 2007); Bay Mills Indian Cmty. v. Snyder, 720 F. App’x 754, 759 (6th Cir. 2018) (“District courts can consider [mandatory intervention] factors when evaluating permissive intervention motions.”). The MRP and the RNC move to intervene to protect their “competitive interests in defending the constitutional election laws in Michigan in order to preserve a fair playing field and prevent change to Michigan’s competitive
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environment in the upcoming 2020 elections.” (ECF No. 33, PageID.499). The Legislature says that it has a compelling interest in the defense of duly enacted statutes and preserving the integrity of Michigan’s elections through the same. (ECF No. 39, PageID.700, 707).
The Legislature’s interest in this case is sound as it stems from its constitutional mandate to “enact laws . . . to preserve the purity of elections.” 1963 Mich. Const., Art. II, § 4(2). This weighs in favor of granting the Legislature permissive intervention. The MRP’s and RNC’s competitive interests are not as salient, but because this case involves the integrity of Michigan’s election laws, the Court views it as worthwhile to receive input from all interested parties to reach the correct determination. The Court will therefore permit the MRP, the RNC, and the Legislature to intervene in this case, subject to the limits proscribed below. III. CONCLUSION
For the reasons stated, the Michigan Republican Party’s, the Republican National Committee’s, and the Michigan Legislature’s motions to intervene (ECF Nos. 33, 39) are GRANTED.
The MRP, the RNC, and the Legislature must answer or otherwise respond to the amended complaint within ten (10) days of this opinion and order. To the extent that the responses come in the form of dispositive motions, the motions are
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limited to issues not already addressed and resolved through the Court’s opinion

and order regarding Nessel’s motion to dismiss.

The MRP, the RNC, and the Legislature must file any response to the

plaintiffs’ motion for a preliminary and permanent injunction within fourteen (14)

days of this opinion and order. The plaintiffs may file reply briefs within seven (7)

days of the response(s).

IT IS SO ORDERED.

Date: May 22, 2020

s/Stephanie Dawkins Davis Stephanie Dawkins Davis United States District Judge

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 Case 4:19-cv-13341-SDD-RSW ECF No. 61 filed 06/01/20 PageID.1028 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and
Michigan Republican Party And Republican National Committee,

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN
MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE ANSWER TO AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF (42 U.S.C. § 1983)

Intervening Parties,

and

Michigan House of Representatives, And Michigan Senate,

Intervening Parties.

_______________________________________________________________/

MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE ANSWER TO AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF (42 U.S.C. § 1983)

Pursuant to Federal Rule Civil Procedure 8, the Michigan Republican Party

(“MRP”) and Republican National Committee (“RNC”) (collectively the

“Intervenors”), state as follows:

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INTRODUCTION 1. The case law referenced in paragraph 1 of the Amended Complaint speaks for itself. Paragraph 1 further states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 1 as untrue. 2. Intervenors admit only that Proposal 3 passed in the November 6, 2018 general election. The Michigan Constitution, as amended by the passage of Proposal 3, speaks for itself. Plaintiffs’ mischaracterizations of Proposal 3 and its effect in paragraph 2 of the Amended Complaint state legal conclusions to which no response is required. Intervenors deny as untrue all allegations in paragraph 2 to which a response is required. 3. Intervenors deny as untrue any allegations in paragraph 3 of the Amended Complaint that are inconsistent with the text of MCL 168.931 and MCL 168.759, which speak for themselves. Specifically, Intervenors deny that the terminology “Voter Transportation Ban” and “Absentee Ballot Organizing Ban,” which are absent from the text of these specific statutes, are inaccurate, and accordingly deny each allegation in the Amended Complaint utilizing these terms. Paragraph 3 further states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 3 as untrue.
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4. Intervenors deny as untrue any allegations in paragraph 4 of the Amended Complaint that are inconsistent with the text of MCL 168.931 and MCL 168.759, which speak for themselves. Paragraph 4 further states a legal conclusion as to which no response is required. To the extent a further response is required, Intervenors deny the allegations of paragraph 4 as untrue.
5. Paragraph 5 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931 and MCL 168.759 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 5 as untrue.
6. Intervenors admit only that the Michigan Primary Election was on March 10, 2020, and the 2020 General Election is on November 3, 2020. The case law referenced in paragraph 6 of the Amended Complaint speaks for itself. Paragraph 6 further states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 6 as untrue.
PARTIES 7. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 7 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 8. Intervenors lack knowledge or information sufficient to form a belief
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about the allegations of paragraph 8 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
9. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 9 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
10. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 10 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
11. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 11 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
12. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 12 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
13. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 13 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
14. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 14 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
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15. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 15 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
16. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 16 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
17. Intervenors deny as untrue any allegations in paragraph 17 of the Amended Complaint that are inconsistent with the text of the Michigan Constitution. Intervenors further lack knowledge or information sufficient to form a belief about the allegations of paragraph 17, and therefore leave Plaintiffs to their proofs.
18. The Amended Complaint speaks for itself. (ECF No. 17). Intervenors admit the remaining allegations in paragraph 18 of the Amended Complaint, except that Intervenors deny the use of the terms “Voter Transportation Ban” and “Absentee Ballot Organizing Ban,” to the extent they are inaccurate descriptions of MCL 168.931 and MCL 168.759.
JURISDICTION AND VENUE 19. The Amended Complaint speaks for itself. (ECF No. 17). To the extent further response is required, Intervenors admit only that claims under the First and Fourteenth Amendments of the U.S. Constitution are actionable under 42 U.S.C. § 1983, and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.
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20. Intervenors deny the allegations in paragraph 20 of the Amended Complaint as Plaintiffs’ claims are barred, in whole or in part, by federal abstention doctrines, specifically the Pullman Abstention doctrine. See Railroad Comm’n of Tex v Pullman Co, 312 U.S. 496 (1941).
21. Intervenors admit only that venue is proper. 22. Intervenors admit the allegations in paragraph 22 of the Amended Complaint. 23. Paragraph 23 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 23 as untrue. 24. Paragraph 24 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 24 as untrue. 25. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 25 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 26. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 26 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 27. Paragraph 27 of the Amended Complaint states a legal conclusion as to
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which no response is required. Intervenors lack knowledge or information sufficient to form a belief regarding the alleged repeated refusal of Defendant and other state officials in Michigan to disavow enforcement of MCL 168.931 and MCL 168.759. To the extent a response is required, Intervenors deny the allegations of paragraph 27 as untrue.
28. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 28 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
29. Defendant’s initial motion to dismiss speaks for itself. (ECF No. 10). 30. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 30 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 31. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 31 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 32. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 32 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
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GENERAL ALLEGATIONS The Voter Transportation Ban 33. MCL 168.931(1)(f) and MCL 750.504 speak for themselves. 34. Paragraph 34 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931(1)(f) speaks for itself. 35. Paragraph 35 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 35 as untrue. The case law referenced in paragraph 35, note 1 of the Amended Complaint speaks for itself. 36. The secondary sources referenced in paragraph 36 of the Amended Complaint speak for themselves. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 36, and therefore leave Plaintiffs to their proofs. 37. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 37 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 38. Paragraph 38 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 38 as untrue. 39. Paragraph 39 of the Amended Complaint states a legal conclusion as to
8

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which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 39 as untrue.
40. MCL 168.931(1)(f) speaks for itself. Paragraph 40 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 40 as untrue.
41. The secondary source referenced in paragraph 41 of the Amended Complaint speaks for itself. Paragraph 41 states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 41 as untrue.
42. Paragraph 42 of the Amended Complaint states a legal conclusion as to which no response is required. Intervenors lack knowledge or information sufficient to form a belief about the allegations of paragraph 42 regarding the actions of The Detroit Bus Company and “other organizations” and therefore leave Plaintiffs to their proofs on those allegations. To the extent there are other allegations in paragraph 42 requiring a response, Intervenors deny the allegations of paragraph 42 as untrue.
43. Paragraph 43 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931 and MCL 168.932 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 43 as untrue.
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44. Paragraph 44 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 44 as untrue.
45. Paragraph 45 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 45 as untrue.
46. Paragraph 46 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 11 C.F.R. § 108.7(b)(3) speaks for itself.
47. Paragraph 47 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 11 C.F.R. § 108.7(b)(3) speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 47 as untrue.
The Absentee Ballot Organizing Ban 48. Intervenors admit only that absentee voting is voting that occurs before and on Election Day via mail or in person at a municipal clerk’s office. MCL 168.759 speaks for itself. Intervenors lack knowledge or information sufficient to form a belief about the remaining allegations of paragraph 48 of the Amended Complaint, and therefore leave Plaintiffs to their proofs.
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49. Intervenors admit only that Proposal 3 passed in the November 6, 2018 general election. Paragraph 49 of the Amended Complaint further states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the legal conclusion of paragraph 49 as untrue.
50. MCL 168.759 speaks for itself. 51. Paragraph 51 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 51 as untrue. Moreover, MCL 168.759 and MCL 168.2(l), referenced in paragraph 51, note 2 of the Amended Complaint, speak for themselves. 52. Intervenors lack knowledge or information sufficient to form a belief about the remaining factual allegations of paragraph 52 of the Amended Complaint, and therefore leave Plaintiffs to their proofs. 53. Paragraph 53 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.759 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 53 as untrue. 54. Paragraph 54 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.761(3), (6); MCL 168.769; and MCL 168.760 speak for themselves. To the extent a response is required, Intervenors
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deny the allegations of paragraph 54 as untrue. 55. The Michigan Election Laws referenced in paragraph 55 of the
Amendment Complaint speak for themselves. Paragraph 55 states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 55 as untrue.
CAUSES OF ACTION COUNT I
U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Absentee Ballot Organizing Ban is Unconstitutionally Vague and Overbroad)
56. MCL 168.759 speaks for itself. Paragraph 56 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 56 as untrue.
57. Paragraph 57 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, the case law referenced in paragraph 57 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 57 as untrue.
58. Paragraph 58 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, the case law referenced in paragraph 58 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 58 as untrue.
59. Paragraph 59 of the Amended Complaint states a legal conclusion as to
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which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 59 as untrue.
60. Paragraph 60 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 60 as untrue.
COUNT II U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Absentee Ballot Organizing Ban Violates Speech and Associational
Rights Protected by the First and Fourteenth Amendments) 61. Intervenors incorporate by reference paragraphs 1 through 60 of their Answer in response to the allegations contained in paragraph 61 of the Amended Complaint. 62. Paragraph 62 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, the case law referenced in paragraph 62 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 62 as untrue. 63. Paragraph 63 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, the case law referenced in paragraph 63 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 63 as untrue. 64. Paragraph 64 of the Amended Complaint states a legal conclusion as to
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which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 64 as untrue.
COUNT III U.S. Const. Amend. XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Absentee Ballot Organizing Ban Imposes an Undue Burden on the Fundamental Right to Vote)
**The Court has already dismissed Plaintiffs’ undue burden claim for Count III, and thus no responses are necessary for the below allegations. (ECF No. 59).
65. No response needed. 66. No response needed. 67. No response needed. 68. No response needed. 69. No response needed. 70. No response needed.
COUNT IV Violation of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508 (Federal Law Supersedes and Preempts the Absentee Ballot Organizing Ban)
71. Intervenors incorporate by reference paragraphs 1 through 70 of their Answer in response to the allegations contained in paragraph 71 of the Amended Complaint.
72. Paragraph 72 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 52 U.S.C. § 10508 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 72
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as untrue. 73. The case law referenced in paragraph 73 of the Amended Complaint
and 52 U.S.C. § 10508 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 73 as untrue.
74. 52 U.S.C. § 10508 speaks for itself. 75. Paragraph 75 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 52 U.S.C. § 10508 and MCL 168.759 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 75 as untrue. 76. Paragraph 76 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 76 as untrue. 77. Paragraph 77 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 77 as untrue. 78. Paragraph 78 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 78 as untrue.
COUNT V U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban is Unconstitutionally Vague and Overbroad)
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79. Intervenors incorporate by reference paragraphs 1 through 78 of their Answer in response to the allegations contained in paragraph 79 of the Amended Complaint.
80. Paragraph 80 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, MCL 168.931(f) speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 80 as untrue.
81. Paragraph 81 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 81 as untrue.
82. Paragraph 82 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 82 as untrue.
COUNT VI U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983,
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban Violates Speech and Associational Rights
Protected by the First and Fourteenth Amendments) 83. Intervenors incorporate by reference paragraphs 1 through 82 of their Answer in response to the allegations contained in paragraph 83 of the Amended Complaint. 84. Paragraph 84 of the Amended Complaint states a legal conclusion as to
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which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 84 as untrue.
85. Paragraph 85 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 85 as untrue.
86. Paragraph 86 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 11 C.F.R. § 114.4(d)(1) and the case law referenced in paragraph 86 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 86 as untrue.
87. Paragraph 87 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, the case law referenced in paragraph 87 speaks for itself. To the extent a response is required, Intervenors deny the allegations of paragraph 87 as untrue.
88. Paragraph 88 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 88 as untrue.
COUNT VII U.S. Const. Amend. XIV, 42 U.S.C. § 1983, 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Voter Transportation Ban Creates an Undue Burden on the
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Fundamental Right to Vote) **The Court has already dismissed Plaintiffs’ undue burden claim for Count VII, and thus no responses are necessary for the below allegations. (ECF No. 59). 89. No response needed. 90. No response needed. 91. No response needed. 92. No response needed.
Count VIII Declaratory Judgment Act 28 U.S.C. § 2201, 28 U.S.C. § 2202 (Federal Law Supersedes and Preempts the Voter Transportation Ban) 93. Intervenors incorporate by reference paragraphs 1 through 92 of their Answer in response to the allegations contained in paragraph 93 of the Amended Complaint. 94. Paragraph 94 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 52 U.S.C. § 30143 and 11 C.F.R. § 108.7 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 94 as untrue. 95. Paragraph 95 of the Amended Complaint states a legal conclusion as to which no response is required. Moreover, 11 C.F.R. § 114.4 and 11 C.F.R. § 114.3 speak for themselves. To the extent a response is required, Intervenors deny the allegations of paragraph 95 as untrue. 96. Paragraph 96 of the Amended Complaint states a legal conclusion as to
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which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 96 as untrue.
97. Paragraph 97 of the Amended Complaint states a legal conclusion as to which no response is required. To the extent a response is required, Intervenors deny the allegations of paragraph 97 as untrue.
PRAYER FOR RELIEF WHEREFORE, Intervenors Michigan Republican Party and Republican National Committee respectfully request that the Amended Complaint be dismissed with prejudice and that they be awarded costs, reasonable attorney fees, and such further relief as the Court deems just and equitable.
BUTZEL LONG, PC By: /s/ Kurtis T. Wilder Kurtis T. Wilder (P37017) Steven R. Eatherly (P81180) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com eatherly@butzel.com DATED: June 1, 2020
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AFFIRMATIVE DEFENSES Pursuant to Federal Rule Civil Procedure 8(c), the Michigan Republican Party (“MRP”) and Republican National Committee (“RNC”) (collectively the “Intervenors”), by counsel, assert the following affirmative defenses: 1. Plaintiffs have failed to mitigate their alleged damages, if any. 2. The Amended Complaint fails, in whole or in part, including the nature of damages requested, to state claims upon which relief can be granted. 3. Plaintiffs’ injunctive claims, as governed by Fed. R. Civ. Pro. 57 and 65 and 28 U.S.C. §§ 2201 and 2202, fail to state a claim on which relief can be granted, therefore warranting dismissal. 4. Plaintiffs lack standing to bring the subject claims against Defendant. 5. Plaintiffs’ claims, in whole or in part, are not ripe for adjudication. 6. Plaintiffs’ claims, in whole or in part, are moot. 7. Plaintiffs’ claims are barred, in whole or in part, by federal abstention doctrines, specifically the Pullman Abstention doctrine. See Railroad Comm’n of Tex v Pullman Co, 312 U.S. 496 (1941). 8. The Court lacks subject-matter jurisdiction over Plaintiffs’ preemption claims. 9. Plaintiffs’ claims are non-justiciable political questions. 10. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of

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equitable, collateral, and/or judicial estoppel and/or res judicata. 11. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute
of limitation period. See 42 U.S.C. § 1988. 12. Plaintiffs’ claims are barred, in whole or in part, by the statute of repose
or laches. 13. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of
waiver. 14. Plaintiffs’ claims are barred, in whole or in part, by one of the affirmative
defenses set forth in Fed. R. Civ. Pro. 8(c). 15. Plaintiffs failed to specially plead their notification of claims of
unconstitutionality under Local Rule 9.1(c). 16. Plaintiffs’ claims are barred, in whole or in part, by any substantive or
procedural defense under the Michigan Election Laws. 17. The Court has already dismissed Plaintiffs’ undue burden claims
(Counts III and VII). (ECF No. 59). 18. Plaintiffs’ claims are barred by the Eleventh Amendment to the U.S.
Constitution. 19. Intervenors reserve the right to assert such further affirmative defenses
as may become apparent during the course of discovery in this case. Until Intervenors avail themselves of discovery, they will not know for certain whether all of the
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aforementioned affirmative defenses will be raised by motion before or at trial, but Intervenors assert them now in an effort to give Plaintiffs notice of such defenses.

DATED: June 1, 2020

BUTZEL LONG, PC
By: /s/ Kurtis T. Wilder Kurtis T. Wilder (P37017) Steven R. Eatherly (P81180) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com eatherly@butzel.com

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CERTIFICATE OF SERVICE I hereby certify that on June 1, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
By: /s/ Kurtis T. Wilder Kurtis T. Wilder (P37017) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com
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 Case 4:19-cv-13341-SDD-RSW ECF No. 62 filed 06/01/20 PageID.1051 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE INC., and THE DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

Plaintiffs,

Case No. 19-13341

v.

HONORABLE STEPHANIE D. DAVIS

MAGISTRATE R. STEVEN WALEN

DANA NESSEL, in her

official capacity as Attorney General

of the State of Michigan,

Defendants

and

THE MICHIGAN SENATE, THE MICHIGAN HOUSE OF REPRESENTATIVES, THE MICHIGAN REPUBLICAN PARTY and THE REPUBLICAN NATIONAL COMMITTEE,

Intervening-Defendants. /

THE MICHIGAN SENATE AND MICHIGAN HOUSE OF REPRESENTATIVES’ ANSWER TO PLAINTIFFS’ AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Intervening Defendants the Michigan House of Representatives and the

Michigan Senate (“the Legislature”), through their counsel, submit the following

Answer to Plaintiffs’ Amended Complaint for Declaratory and Injunctive Relief.

For avoidance of doubt, the Legislature generally denies all allegations except those

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specifically admitted. INTRODUCTION
1. The Legislature admits only that this paragraph contains quotes from court opinions but denies the inference of applicability to this case. The Legislature denies the remaining allegations of this paragraph.
2. The Legislature admits Proposal 3 passed in the November 6, 2018 general election. The Michigan Constitution speaks for itself. The Legislature denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
3. The Legislature denies that Michigan law bans efforts to encourage and assist voters. The Legislature further denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize MCL 168.931 and 168.759, which speak for themselves.
4. Denied. 5. Denied. 6. The Legislature admits the Michigan Primary Election is on March 10, 2020, and the 2020 General Election is on November 3, 2020. The Legislature further denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
PARTIES
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7. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
8. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
9. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
10. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
11. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
12. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
13. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
14. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
15. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
16. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
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17. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Michigan Constitution speaks for itself. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
18. The Legislature admits Dana Nessel is the Attorney General of the State of Michigan and the top law enforcement official responsible for prosecuting the laws of the State of Michigan. The Legislature otherwise denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
JURISDICTION AND VENUE 19. The Legislature admits only that Plaintiff invokes 42 U.S.C. § 1983 and 28 U.S.C. § 2201 as the basis for this action and denies that Plaintiff’s claims have merit. 20. The Legislature admits this Court has subject-matter jurisdiction of the claims arising under 42 U.S.C. §1983 but denies that this Court has subject-matter jurisdiction over Plaintiff’s statutory preemption claims. 21. Admitted. 22. The Legislature admits only that this Court has authority to enter judgment ordering declaratory and injunctive relief but denies that exercise of that
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authority is proper here. 23. The Legislature denies the allegations of this paragraph to the extent
they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
24. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
25. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
26. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
27. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
28. The Legislature lacks knowledge or information sufficient to form a
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belief as to the truth of the allegations of this paragraph. 29. Admitted. 30. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 31. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. 32. The Legislature lacks knowledge or information sufficient to form a
belief as to the truth of the allegations of this paragraph. GENERAL ALLEGATIONS1
33. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law.
34. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize MCL 168.931, which speaks for themselves .
35. The Legislature denies the allegations of this paragraph, including Footnote 1, to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
1 The Legislature declines to restate Plaintiff’s argumentative subheadings, which are not allegations to which a response is required.
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36. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
37. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
38. Denied. 39. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature specifically denies that provisions of MCL 168.931 are arbitrary. 40. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 41. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph. 42. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph. 43. Denied. 44. Denied.
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45. Denied. 46. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 47. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 48. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature otherwise lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph. 49. The Legislature admits Proposal 3 passed in the November 6, 2018 general election. The Michigan Constitution speaks for itself. The Legislature denies the remaining allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 50. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 51. The Legislature denies the allegations of this paragraph, including Footnote 2, to the extent they are inconsistent with or attempt to characterize applicable law. 52. The Legislature lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
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53. Denied 54. Denied. 55. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. The Legislature specifically denies that other statutes “diminish the need” for MCL 168.759.
COUNT I 56. Denied. 57. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 58. Denied. 59. Denied. 60. Denied.
COUNT II 61. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 62. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 63. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 64. Denied.
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COUNT III 65. The Court dismissed Count III. Thus, no response is required. 66. The Court dismissed Count III. Thus, no response is required. 67. The Court dismissed Count III. Thus, no response is required. 68. The Court dismissed Count III. Thus, no response is required. 69. The Court dismissed Count III. Thus, no response is required. 70. The Court dismissed Count III. Thus, no response is required.
COUNT IV 71. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 72. Denied. 73. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 74. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 75. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 76. Denied. 77. Denied. 78. Denied.
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COUNT V 79. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 80. Denied. 81. Denied. 82. Denied.
COUNT VI 83. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 84. Denied. 85. Denied. 86. Denied. 87. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 88. Denied.
COUNT VII 89. The Court dismissed Count VII. Thus, no response is required. 90. The Court dismissed Count VII. Thus, no response is required. 91. The Court dismissed Count VII. Thus, no response is required. 92. The Court dismissed Count VII. Thus, no response is required.
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COUNT VIII 93. The Legislature hereby incorporates all other paragraphs as if fully set forth herein. 94. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 95. The Legislature denies the allegations of this paragraph to the extent they are inconsistent with or attempt to characterize applicable law. 96. Denied. 97. Denied.
PRAYER FOR RELIEF WHEREFORE, the Legislature respectfully requests that the Complaint be dismissed with prejudice and that they be awarded costs, reasonable attorney fees, and such further relief as the Court deems just and equitable.
AFFIRMATIVE DEFENSES 1. Plaintiffs have failed to state a claim upon which relief can be granted. 2. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches. 3. Plaintiffs lack standing. 4. Plaintiffs are barred from raising others’ rights and generalized grievances under the doctrine of prudential standing.
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5. Plaintiff’s claims are non-justiciable political questions. 6. Plaintiffs do not allege a cognizable case or controversy. 7. This Court lacks subject-matter jurisdiction over Plaintiffs’ preemption claims. 8. Plaintiffs’ claims are barred by federal abstention doctrine. 9. Plaintiffs’ Associational and Speech claims are multiplicative of their Undue Burden claims. 10. Plaintiffs’ claims are not ripe for adjudication. 11. Plaintiffs’ claims are barred by the Eleventh Amendment to the United States Constitution. The Legislature reserves the right to add additional affirmative defenses as the result of discovery or otherwise.
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Dated: June 1, 2020

Respectfully submitted,
BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com meyers@bsplaw.com steinberger@basplaw.com

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CERTIFICATE OF SERVICE I hereby certify that on June 1, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475)
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 Case 4:19-cv-13341-SDD-RSW ECF No. 65 filed 06/03/20 PageID.1068 Page 1 of 20

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE, INC., DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,
Plaintiffs, v

No. 19-13341
HON. STEPHANIE DAWKINS DAVIS
MAG. R. STEVEN WHALEN

DANA NESSEL, in her official capacity as the ATTORNEY GENERAL OF THE STATE OF MICHIGAN,

Defendant, and

THE MICHIGAN SENATE, THE MICHIGAN HOUSE OF REPRESENTATIVES, THE MICHIGAN REPUBLICAN PARTY and THE REPUBLICAN NATIONAL COMMITTEE,

Intervening-Defendants. __________________________________/

DEFENDANT ATTORNEY GENERAL DANA NESSEL’S ANSWER TO PLAINTIFFS’ AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF AND AFFIRMATIVE DEFENSES

Case 4:19-cv-13341-SDD-RSW ECF No. 65 filed 06/03/20 PageID.1069 Page 2 of 20
NOW COMES Defendant Attorney General Dana Nessel, by counsel, and answers Plaintiffs’ amended complaint (R. 17, Page ID # 88), by like-numbered paragraphs, as follows:
INTRODUCTION 1. The allegations include quotations to decisions, which decisions speak for themselves, as well as legal conclusions, to which no response is thus required. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 2. Defendant admits the people passed Proposal 3 in November 2018 but denies the remaining allegations as legal conclusions to which no response is required. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 3. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 4. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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5. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 6. Defendant admits the calculation as to days but denies the remaining allegations as they represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
PARTIES 7. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 8. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 9. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 10. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 11. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies.
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12. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 13. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 14. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 15. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 16. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 17. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 18. Defendant admits that she is the Attorney General of the State of Michigan and that she is allegedly sued in her official capacity. Defendant admits that she is authorized to enforce various civil and criminal laws enacted by the Legislature, including the challenged statutes. Defendant denies that she or any of the county prosecutors has a duty to prosecute violations of the Michigan Election Law,
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including the challenged statutes, in that all prosecutors have discretion as to whether or not to bring charges in any particular case.
JURISDICTION AND VENUE 19. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 20. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 21. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 22. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 23. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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24. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 25. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 26. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 27. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 28. Defendant admits that a letter dated October 8, 2019, on which she is carbon copied exists, but Defendant lacks knowledge or information sufficient to form a belief as to truth of whether Defendant received the carbon copy of the letter, and on that basis denies. Defendant admits that she did not respond to the letter. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation that the Secretary of State did not respond to the letter, and on that basis denies. 29. Admitted.
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30. Defendant admits that she received the January 11, 2020, letter through her undersigned counsel. Defendant admits that she did not respond to the letter due to the fact that Plaintiffs had sued Defendant and were raising the same issues in the context of their litigation. 31. Defendant admits that she is generally aware that at least some county prosecutors received the January 13, 2020, letter to which Plaintiffs refer. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation as to how many prosecutors did or did not respond the letter, and on that basis denies. 32. Defendant admits that she has not “disavow[ed] prosecution” of Plaintiffs under the challenged statutes because to do so would be inconsistent with her discretion to charge in any case based on the facts and circumstances. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation as to what county prosecutors continue to do, and on that basis denies.
GENERAL ALLEGATIONS The Voter Transportation Ban 33. These allegations cite and/or quote from Mich. Comp. Laws § 168.931(1)(f) and 750.504, which statutes speak for themselves, and no
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response is thus required. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 34. Defendant admits that § 931(1)(f) does not include an express definition of what it means to “hire a motor vehicle or other conveyance.” 35. Defendant denies that § 931(1)(f) burdens get-out-the-vote efforts. As to the remaining allegations, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 36. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 37. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 38. Denied. 39. Denied. 40. Denied. 41. Defendant denies that § 931(1)(f) “chills organizational civic engagement.” As to the remaining allegations, Defendant lacks
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knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 42. Denied. 43. Denied. 44. Denied. 45. Denied for the reason that § 931(1)(f) does not function as a “spending limitation.” 46. This allegation cites and quotes from 11 C.F.R. § 108.7(b)(3), which regulation speaks for itself, and no response is thus required. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 47. Denied.
The Absentee Ballot Organizing Ban 48. Defendant admits that absentee voting is voting that takes place at somewhere other than a polling location, and that it is a convenient form of voting. As to the remaining allegations, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies.
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49. Defendant admits the people passed Proposal 3 in November 2018. As to the remaining allegations, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and on that basis denies. 50. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 51. These allegations cite and/or quote from Mich. Comp. Laws § 168.759, which statute speaks for itself, and no response is thus required. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 52. Defendant lacks knowledge or information sufficient to form a belief as to the truth of these allegations, and on that basis denies. 53. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 54. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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55. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
CAUSES OF ACTION COUNT I
U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983 28 U.S.C. § 2201, 28 U.S.C. § 2202
(The Absentee Ballot Organizing Ban is Unconstitutionally Vague and Overbroad)
56. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 57. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 58. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 59. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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60. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
COUNT II U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Absentee Ballot Organizing Ban Violates Speech and Associational Rights Protected by the First and Fourteenth
Amendments) 61. Defendant hereby incorporates all other answers as if fully set forth herein. 62. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 63. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 64. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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COUNT III U.S. Const. Amend. XIV, 42 U.S.C. § 1983
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Absentee Ballot Organizing Ban Imposes and Undue
Burden on the Fundamental Right to Vote) 65. The Court dismissed Count III. Thus, no response is required. 66. The Court dismissed Count III. Thus, no response is required. 67. The Court dismissed Count III. Thus, no response is required. 68. The Court dismissed Count III. Thus, no response is required. 69. The Court dismissed Count III. Thus, no response is required. 70. The Court dismissed Count III. Thus, no response is required.
COUNT IV Violation of Section 208 of the Voting Rights Act of 1965, 52
U.S.C. § 10508 (Federal Law Supersedes and Preempts the Absentee Ballot
Organizing Ban) 71. Defendant incorporates by reference the above paragraphs as if fully set forth herein. 72. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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73. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 74. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 75. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 76. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 77. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 78. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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COUNT V U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban is Unconstitutionally Vague and
Overbroad) 79. Defendant incorporates by reference the above paragraphs as if fully set forth herein. 80. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 81. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 82. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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COUNT VI U.S. Const. Amend. I and XIV, 42 U.S.C. § 1983
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban is Violates Speech and Associational Rights Protected by the First and Fourteenth
Amendments) 83. Defendant incorporates by reference the above paragraphs as if fully set forth herein. 84. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 85. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 86. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 87. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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88. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
COUNT VII U.S. Const. Amend. XIV, 42 U.S.C. § 1983
28 U.S.C. § 2201, 28 U.S.C. § 2202 (The Voter Transportation Ban Creates an Undue Burden on
the Fundamental Right to Vote) 89. The Court dismissed Count VII. Thus, no response is required. 90. The Court dismissed Count VII. Thus, no response is required. 91. The Court dismissed Count VII. Thus, no response is required. 92. The Court dismissed Count VII. Thus, no response is required.
COUNT VIII Declaratory Judgment Act 28 U.S.C. § 2201, 28 U.S.C. § 2202
(Federal Law Supersedes and Preempts the Voter Transportation Ban)
93. Defendant incorporates by reference the above paragraphs as if fully set forth herein. 94. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
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95. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 96. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue. 97. These allegations represent legal conclusions to which no response is necessary. To the extent a response is required, Defendant denies the allegations for the reason they are untrue.
AFFIRMATIVE DEFENSES Defendant, by counsel, pursuant to Fed. R. Civ. P. 8(c), asserts the following affirmative defenses, upon which she may rely: 1. Plaintiffs’ complaint fails to state a claim. 2. Plaintiffs’ claims may be barred due to estoppel, res judicata, waiver, and/or laches. 3. Some or all of Plaintiffs’ claims may be moot or not ripe for adjudication. 4. Plaintiffs may lack standing to bring this action. 5. Some of Plaintiffs’ claims, including the preemption claims, may
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be barred due to this Court’s lack of jurisdiction to hear this matter.

6. Plaintiffs’ claims may be barred by federal abstention doctrine.

7. Plaintiffs are barred from raising others’ rights and generalized

grievances under the doctrine of prudential standing.

8. Plaintiffs claims may be barred by the Eleventh Amendment to

US Constitution.

Defendant reserves the right to raise any additional affirmative

defenses that Defendant may have following the completion of discovery

herein.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: June 3, 2020

s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorney General Attorney for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439

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CERTIFICATE OF SERVICE I hereby certify that on June 3, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing of the foregoing document as well as via US Mail to all non-ECF participants.
s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov P55439
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 Case 4:19-cv-13341-SDD-RSW ECF No. 68 filed 06/05/20 PageID.1155 Page 1 of 44

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRIORITIES USA, RISE INC., and THE DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE,

Plaintiffs,

Case No. 19-13341

v.

HONORABLE STEPHANIE D. DAVIS

MAGISTRATE R. STEVEN WALEN

DANA NESSEL, in her

official capacity as Attorney General

of the State of Michigan,

Defendants

and

THE MICHIGAN SENATE, THE MICHIGAN HOUSE OF REPRESENTATIVES, THE MICHIGAN REPUBLICAN PARTY and THE REPUBLICAN NATIONAL COMMITTEE,

Intervening-Defendants. /

THE MICHIGAN SENATE AND THE MICHIGAN HOUSE OF REPRESENTATIVES’ RESPONSE TO PLAINTIFFS’ MOTION FOR A
PRELIMINARY AND PERMANENT INJUNCTION

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................1 STATEMENT OF FACTS..............................................................................2 A. Michigan’s Constitution compels the Legislature “to preserve the
purity of elections,” “to guard against abuses of the elective franchise,” and “to provide for a system of . . . absentee voting.”........2 B. Mich. Comp. Laws § 168.759: Michigan’s Prohibition of the Unauthorized Distribution and Solicitation of Absentee Ballot Applications. .......................................................................................... 2 C. Mich. Comp. Laws § 168.931 – Michigan’s Prohibition of Payment for Transportation to Elections..............................................................5 ARGUMENT ................................................................................................... 6 A. Legal Standard for Preliminary Injunction ...........................................6 B. Plaintiffs have not shown a strong likelihood of success on the merits. ............................................................................................................... 8 1. Section 759—the prohibition on the unauthorized distribution
and solicitation of absentee ballot applications—is a valid and constitutional exercise of the Legislature’s authority.................8 a. Section 759 does not violate the First Amendment..........8 b. Section 759 is clear and understandable.........................17 c. The Voting Rights Act does not preempt Section 759. ..20 2. Section 931(1)(f) - The prohibition of payment for transportation to elections is a valid and constitutional exercise of the Legislature’s authority. ...................................................24 a. The prohibition of payment for transportation to elections
is constitutional. ..............................................................24 b. Section 931(1)(f) is clear and understandable. ...............31 c. Federal law neither expressly nor impliedly preempts
Section 931(1)(f).............................................................33 C. Plaintiffs cannot show any harm, much less irreparable harm, in the
absence of an injunction. .....................................................................35 D. Issuing a Preliminary Injunction is Contrary to the Public Interest. ...36
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CONCLUSION ..............................................................................................38
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Cases American Association of People With Disabilities v. Herrera, 580 F. Supp. 2d
1195 (D.N.M. 2008). Anderson v Celebrezze, 460 U.S. 780 (1983). Burdick v Takushi, 504 U.S. 428 (1992). Green Party v. Hargett, 700 F.3d 816 (6th Cir. 2012). Maryland v. King, 567 U.S. 1301 (2012). Ray v. Texas, No. 06-CV-385, 2008 WL 3457021 (E.D. Tex. Aug. 7, 2008). Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013). Washington State v. Grange, 552 U.S. 442 (2008). Constitutional Provisions and Statutes Mich. Const. 1963, art. 2, § 4 Mich. Comp. Laws § 168.931 Mich. Comp. Laws § 168.759
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Michigan’s citizens, through the Michigan Constitution, compel the
Legislature to pass laws “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.” Mich. Const. 1963, art 2, § 4. Plaintiffs attack two such laws here: Mich. Comp. Laws § 168.759, which regulates the process of distributing and collecting absentee ballot applications, and Mich. Comp. Laws § 168.931(f), which prohibits hiring a motor vehicle to transport voters to the polls. Neither law regulates expressive conduct, thus both are subject to rational basis review. The state’s compelling and oft-recognized interest in preventing fraud and corruption justifies these statutes. Both statutes use clear, everyday language and are clear about the conduct regulated, so neither is vague. And neither statute is preempted by federal law. Under those circumstances, should the Court take the extraordinary step of enjoining Michigan election laws in the run-up to an election?
The Legislature answers “No.” Plaintiffs answer “Yes.” Attorney General Nessel answers “No.” The Michigan Republican Party and National Republican Party answer
“No.” This Court should answer “No.”
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INTRODUCTION For over 160 years, the Michigan Legislature has “been specifically commanded by the people of Michigan to ‘preserve the purity of elections’ and ‘to guard against abuses of the elective franchise.’” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. 2007). The people of Michigan, through the 1963 Michigan Constitution, further command the Legislature to “regulate the time, place and manner of all nominations and elections” and to “provide for a system of voter registration and absentee voting.” Mich. Const. 1963, art 2, § 4. To further its constitutional imperative, the Legislature has passed various statutes, two of which are under attack here. Specifically, Plaintiffs attack Mich. Comp. Laws § 168.759, which regulates the process of distributing and collecting absentee ballot applications, and Mich. Comp. Laws § 168.931(f), which prohibits hiring a motor vehicle to transport voters to the polls. These laws are important protections against fraud and corruption, and they ensure the integrity of the ballot box. Plaintiffs argue that these statutes are unconstitutional. They are wrong. Plaintiffs are not entitled to the extraordinary remedy of an injunction because they cannot demonstrate a likelihood of success on the merits. In addition, there is no imminent, irreparable harm, and the public interest militates against an injunction. Plaintiffs’ motion should be denied.
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STATEMENT OF FACTS A. Michigan’s Constitution compels the Legislature “to preserve the
purity of elections,” “to guard against abuses of the elective franchise,” and “to provide for a system of . . . absentee voting.” Though Plaintiffs focus their attention on two narrow slices of the Michigan Election Code, an analysis of those sections requires a broader understanding of the Michigan Constitution’s relevant provisions. The Michigan Constitution grants the Legislature the “legislative power of the State.” Mich. Const. 1963, art 4, § 1. It also provides that it is exclusively the Legislature’s role “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.” Mich. Const. 1963, art 2, § 4. To carry out its constitutional duty, the Michigan Legislature has enacted statutes to protect the integrity of Michigan’s elections, including those at issue here. B. Mich. Comp. Laws § 168.759: Michigan’s Prohibition of the Unauthorized Distribution and Solicitation of Absentee Ballot Applications. Section 759 of the Michigan Election Law governs absentee ballot applications. Though Plaintiffs only attack several discreet provisions, an overall understanding of the framework is required. An elector may apply for an absentee ballot at any time during the 75 days before the primary or election. Mich. Comp. Laws § 168.759(1) – (2). In both cases, “the elector shall apply in person or by mail
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with the clerk” of the township or city where the elector is registered. Id. Section
759 continues:
(3) An application for an absent voter ballot under this section may be made in any of the following ways:
(a) By a written request signed by the voter.
(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.
(c) On a federal postcard application.
(4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.
(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request. [Mich. Comp. Laws §§ 168.759(3) – (5).]
A form application must contain the following warning:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk’s office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk's authorization to return your application. [Id.]
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Similarly, a registered elector returning an absentee ballot application must sign a
certificate affirming:
I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. [Id.]
Under Section 759(6), the application form must include the following
instructions for an applicant:
Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application. [Mich. Comp. Laws § 168.759(6).]
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Section 759(8) states 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 assistant of the clerk is guilty of a misdemeanor.” Mich. Comp Laws § 168.759(8) (emphasis added).
Plaintiffs attack two aspects of this statute. First, they allege that it is unconstitutional to limit the individuals authorized to return an absentee ballot application to other registered electors. Second, they allege that the provisions preventing individuals from “soliciting or requesting to return” others absentee ballot applications are unconstitutional.
C. Mich. Comp. Laws § 168.931 – Michigan’s Prohibition of Payment for Transportation to Elections.
Plaintiffs also challenge one specific provision of Section 931 of the Michigan Election Law, which consists of various protections against undue influence and corruption. For example, Section 931(1)(a) makes it a misdemeanor to promise or lend something of valuable consideration in exchange for a vote; Section 931(1)(d) makes it a misdemeanor to threaten someone’s employment unless they vote for a particular candidate; and Section 931(1)(e) prohibits religious leaders from threatening religious penalties to influence votes. Plaintiffs do not challenge any of these protections. The particular section that Plaintiffs take issue with—Section 931(1)(f)—makes it a misdemeanor to pay for a voter’s transportation to an election:
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(1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor: * * *
(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. [Mich. Comp. Laws § 168.931(1)(f).]
ARGUMENT Plaintiffs ask this Court to grant the extraordinary remedy of enjoining longestablished election statutes in the run-up to an election based strictly on questionable legal arguments and a promise to fill in gaps later. The Court must decline that invitation. Plaintiffs simply cannot meet the extremely high bar required for the relief they seek. A. Legal Standard for Preliminary Injunction Preliminary injunctions are “one of the most drastic tools in the arsenal of judicial remedies.” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)). The standard is even higher where—as here—the injunction will alter rather than maintain the status quo. See generally, Huron Valley Pub. Co. v. Booth Newspapers, Inc., 336 F. Supp. 659 (E.D. Mich. 1972); Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27 (2nd Cir. 1995); Rathmann Group v. Tanenbaum, 889 F.2d 787 (8th Cir. 1989).
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In evaluating whether a Plaintiff is entitled to the extraordinary remedy of injunctive relief, courts in the Sixth Circuit consider whether Plaintiffs have established the following elements:
(1) a strong or substantial likelihood of success on the merits; (2) the likelihood of irreparable injury if the preliminary injunction
does not issue; (3) the absence of harm to other parties; and (4) the protection of the public interest by issuance of the injunction.
Id. These factors are not prerequisites to the grant or denial of injunctive relief, but factors that must be “carefully balanced” by the district court in exercising its equitable powers. Frisch’s Rest., Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); see also S. Galzer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017) (“[T]hese are factors to be balanced, not prerequisites to be met.”). “The party seeking injunctive relief bears a heavy burden of establishing that the extraordinary and drastic remedy sought is appropriate under the circumstances.” Cummings v. Washington, No. 2:20-CV-65, 2020 WL 2764364, at *6 (W.D. Mich. May 28, 2020) (citing Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002); Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978). “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances
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clearly demand it.” Overstreet, 305 F.3d at 573 (cleaned up). This “extraordinary” remedy “should best be used sparingly.” Jerome–Duncan, Inc. v. Auto–By–Tel, L.L.C., 966 F.Supp. 540, 541 (E.D. Mich.1997).
B. Plaintiffs have not shown a strong likelihood of success on the merits.
Following this Court’s decision on the Attorney General’s Motion to Dismiss, which dismissed Plaintiffs’ undue burden claims (Dkt. 59), six counts remain—three against each of the challenged provisions. But Plaintiffs are not likely to succeed on any of those claims.
1. Section 759—the prohibition on the unauthorized distribution and solicitation of absentee ballot applications—is a valid and constitutional exercise of the Legislature’s authority.
Plaintiffs’ challenge to Section 759 will fail on the merits. First, the distribution and collection of applications is non-expressive conduct, the regulation of which is reviewed for rational basis (which is easily met here). Second, the statute is not vague; it is easily understandable by a person of ordinary intelligence. Finally, the statute is not preempted by the Voting Rights Act.
a. Section 759 does not violate the First Amendment. Plaintiffs urge this Court to apply exacting scrutiny to Section 759. That is not the correct test. Rather, the Court should apply the Anderson-Burdick balancing test, which in this case requires a rational-basis examination. An allegation that a voting law unduly burdens the right to vote is properly
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analyzed under the Anderson-Burdick framework set out in Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). See Mays v. LaRose, 951 F.3d 775, 784 (6th Cir. 2020).
Under Anderson-Burdick, the Court first examines the burden the regulation imposes on the right to vote. Burdick, 504 U.S. at 434. When the regulation imposes “reasonable nondiscriminatory restrictions” on the right to vote, a court will apply rational basis review and “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788). But when states impose severe restrictions on the right to vote, such as poll taxes, strict scrutiny applies. Burdick, 504 US at 434. Between these extremes, the flexible Anderson-Burdick test creates an intermediate level of scrutiny. Where the burden on the right to vote is moderate, courts weigh that burden against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). Section 759 is a reasonable, nondiscriminatory statute that does not infringe on First Amendment rights and ought to be reviewed for rational basis.
Courts analyzing analogous statutes reject strict or exacting scrutiny. The Fifth Circuit’s opinion in Voting for Am., Inc. v. Steen is instructive here. 732 F.3d 382 (5th Cir. 2013). The statute at issue in Steen governed various aspects of voter-
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registration organization; one particular provision—especially on point here— prohibited non-Texas residents from serving as “Volunteer Deputy Registrars” who collect and handle completed registration forms. Id. at 385. Steen’s plaintiffs, like Plaintiffs here, argued that this violated their First Amendment rights of speech and association because their out-of-state members could not handle completed forms. Id. at 389. The Fifth Circuit rejected the plaintiffs’ invitation to apply exacting scrutiny, holding that there “is nothing ‘inherently expressive’ about receiving a person’s completed application and being charged with getting that application to the proper place.” Id. at 392 (cleaned up). The Court therefore held that “rational basis scrutiny is appropriate.” Id.
Just so here. Like Texas’s limit on those permitted to serve as Volunteer Deputy Registrars, Section 759’s limits on who can handle absentee ballot applications and restriction of the solicitation of absentee ballot applications “do not in any way restrict or regulate who can advocate” for absentee voting, “the manner in which they may do so, or any communicative conduct.” Id. at 392. Rather, Section 759 merely regulates the mechanics of the completion and submission of applications—“non-expressive activities.” Id. Indeed, as Steen noted, Michigan could constitutionally claim the distribution and receipt of absentee ballot applications for itself as a purely government function. Id. at 391 n. 4 (“Because collecting and delivering completed registration forms are not speech, Texas could
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prohibit private persons from engaging in these activities.”). While Michigan’s lawmakers have not, in their collective wisdom, chosen to impose such a prohibition, it reinforces the point that Michigan’s protections on the absentee-voter-application process are subject to rational-basis scrutiny.
Likewise, in American Association of People With Disabilities v. Herrera, the statute at issue imposed criminal penalties on third-party voter organizations for violations of various restrictions on the collection and handling of voter registration applications. 580 F. Supp. 2d 1195, 1206 (D.N.M. 2008). For example, New Mexico’s law criminalized handling ballots above a numerical limit and holding ballots longer than 48 hours. Id. Like Plaintiffs here, Herrera’s plaintiffs alleged that the New Mexico statute violated their First Amendment rights by imposing penalties on get-out-the-vote activities. Id. The court determined that the challenged law was “subject to the Anderson balancing and not to the strict scrutiny that the Plaintiffs urge.” Id. at 1227.
In rejecting strict scrutiny, the Herrera court relied on characteristics of the New Mexico law that are just like Section 759. The court noted that the New Mexico statute “is a content-neutral limitation” and “places reasonable limits on the manner in which the Plaintiffs conduct their association.” Id. at 1229. The same is true here. Section 759 is content neutral. Indeed, Section 759’s protections apply the same to any person or group distributing or soliciting absentee ballot applications—
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conservative, progressive, party-affiliated, independent, and everything in between. Herrera’s holding that strict scrutiny is “improper” is therefore persuasive here. Id. at 1228. See also League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1323 (S.D. Fla. 2008) (holding that “[s]trict constitutional scrutiny is . . . inappropriate” where law concerning handling of voter registration applications was “facially neutral.”).
For their argument that Section 759 deserves exacting or strict scrutiny, Plaintiffs rely on Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999). But those cases are easily distinguishable because they do not involve the sign-up of absentee voters. What Meyer and Buckley actually involve are petition drives—a political expression of the petition circulator. “Put otherwise, while voter registration drives [or drives to sign up absentee voters] involve core protected speech, they are factually distinct from the circulation of petitions addressed by the Supreme Court in Meyer and Buckley.” Steen, 732 F.3d at 390 (cleaned up). “Petitions by themselves are protected speech, and unlike a completed voter registration form, they are the circulator’s speech.” Id. Assuming arguendo that an absentee ballot application is speech, “it is the voter’s speech indicating his desire to [receive an absentee ballot;]” it is decidedly not the speech of the third-party organization seeking to collect absentee ballot applications. Id. Thus, there is no First Amendment expression in collecting an application and
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delivering it the clerk. Plaintiffs’ reliance on Tennessee State Conference of N.A.A.C.P. v. Hargett is
likewise misplaced. 420 F. Supp. 3d 683, 702 (M.D. Tenn. 2019). Hargett involved laws governing voter-registration drives, but there are critical distinctions that drove the result in Hargett and cut against exacting scrutiny here. The Hargett court emphasized that talking with a potential voter about whether to register is inherently political in nature. As the Hargett court noted, “the creation of a new voter is a political change—no less so than the inauguration of a new mayor or the swearingin of a new Senator.” Id. at 702. “A discussion of whether or not a person should register to vote, moreover, inherently ‘implicates political thought and expression.’” Id. at 703 (quoting Buckley, 525 U.S. at 195). “Registering to vote is not a politically neutral act, and neither is declining to [register]. . . . The way that the person encouraging registration responds to or preempts the objections people have to voting will, therefore, often bear on fundamental questions at the heart of the political system.” Id.
Distributing and soliciting absentee ballot applications—unlike the voter registration drives discussed in Hargett—is politically neutral. Distributing and soliciting absentee ballot applications does not create a new voter, rather it changes the process by which an existing voter will cast her ballot. Likewise, the decision to vote absentee instead of in-person is a decision of voter-convenience—hardly a
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question “at the heart of the political system.” Hargett, 420 F. Supp. 3d at 703. As explained above, laws affecting voter-registration drives do not warrant exacting scrutiny. See Steen, 732 F.3d 382; Herrera, 580 F. Supp. 2d 1195; Browning, 575 F. Supp. 2d 1298. But even if they did, laws concerning the distribution and collection of absentee ballot applications certainly do not. The appropriate scrutiny under the Anderson-Burdick framework is rational basis.
Having established that Section 759 is subject to rational-basis review, Plaintiffs’ unlikelihood of success on the merits becomes apparent. The Sixth Circuit recognizes that when rational-basis review applies to election laws “the State’s important regulatory interests are generally sufficient to justify the restrictions.” Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016).
Michigan’s compelling interests in regulating the distribution and return of absentee ballot applications would satisfy strict scrutiny and therefore easily satisfy the appropriate rational-basis standard. First, Michigan has an interest in regulating absentee voting applications to prevent fraud. There is no doubt that a state has an interest in preventing fraud and the dilution of valid votes. Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001) (holding that “the State has a compelling interest in preventing fraud”) (emphasis added); see also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008) (“While the most effective
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method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.”); Storer v. Brown, 415 U.S. 724, 730 (1974) (noting that a state has the power to engage in “substantial regulation of elections” in order to ensure elections are fair, honest, and orderly). And the “purity of the ballot is more difficult to preserve when voting absent than when voting in person.” State ex rel. Whitley v. Rinehart, 192 So. 819, 823 (Fla. 1939). This compelling interest justifies Section 759’s protections.
But the Court need not wade into considerations of outright fraud to recognize Michigan’s substantial interest in protecting the absentee-voter-application process. By regulating the distribution and collection of absentee ballot applications and limiting those who are permitted to transport the applications, the state increases accountability and protects against instances of carelessness. They increase the faith that an individual voter has that her vote will be delivered properly and counted. Courts recognize various problems with third-party collection of absentee-ballot applications, ranging from “hoard[ing]” applications, to “fail[ing] to submit applications” by the deadline, to “fail[ing] to submit applications at all.” Browning, 575 F.Supp.2d at 1324. By 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 who is subject to subpoena power in Michigan. And by requiring that the voter “request” assistance from
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anyone other than a relative or house-hold member, it ensures that the registered elector is someone the voter trusts. These important checks ensure accountability on the part of those handling the applications and promote faith in the absenteevoting system.
These interests are especially pronounced in Michigan, where the Michigan Constitution itself provides that it is the exclusive role and duty of the Legislature “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.” Mich. Const. 1963, art 2, § 4.
Moreover, Plaintiffs’ requested relief—a declaration that the entirety of Section 759 is unconstitutional—makes their row to hoe even tougher. Plaintiffs facially challenge Section 759. “Facial challenges are disfavored for several reasons.” Washington State v. Grange, 552 U.S. 442, 450 (2008). First, “[c]laims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records.” Id. (cleaned up). Facial challenges “also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.” Id. (cleaned up).
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Finally, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id. at 451. Because facial challenges are frowned upon, Plaintiffs “bear a heavy burden in demonstrating a substantial likelihood of success[.]” Browning, 575 F. Supp. 2d at 1314; see also Crawford, 553 U.S. at 200 (“Given the fact that petitioners have advanced a broad attack on the constitutionality of [the election regulation], seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion.”).
Section 759 is a valid and constitutional exercise of the Legislature’s duty to enact laws to “preserve the purity of elections,” “to guard against abuses of the elective franchise,” and “to provide for a system of . . . absentee voting.” Mich. Const. 1963, art 2, § 4. The appropriate standard of review is for rational basis. And Michigan’s compelling state interests satisfy any standard of review. Accordingly, Plaintiffs are not likely to succeed on the merits of this claim.
b. Section 759 is clear and understandable. The Sixth Circuit is clear: a statute should not be struck as facially vague unless a plaintiff has “demonstrated that the law is impermissibly vague in all of its applications.” Green Party v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012), quoting Vill. Of Hoffman Estates v. Flipside, Hoffman Estates Inc.,455 U.S. 489, 497 (1982). “[P]erfect clarity and precise guidance have never been required even of regulations
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that restrict expressive activity.” United States v. Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 1845, 170 L. Ed. 2d 650 (2008), quoting Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). “[F]ederal courts must construe challenged state statutes, whenever possible, so as “to avoid constitutional difficulty.” Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir. 2006) (cleaned up). “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Chapman v. United States, 500 U.S. 453, 464, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
There are two circumstances under which a law may be challenged for vagueness: “First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), citing Chicago v. Morales, 527 U.S. 41, 56–57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Section 759 is not vague under either test.
Plaintiffs argue that Section 759 is vague in prohibiting a person from “solicit[ing] or request[ing] to return” an absentee ballot application. Dkt. 22-1, Plfs’ P.I. Brf., p 29. Plaintiffs lament that Section 759 “does not provide any guidance on what it means to solicit or request to return an absentee ballot application.” Id. at 30.
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Plaintiffs’ suggestion that Section 759 needs additional guidance is meritless. The language that Plaintiffs complain about is readily understandable to a person of ordinary intelligence. The statute plainly prohibits a person—other than those specifically permitted under Section 759—from asking to return another person’s absentee ballot application. No additional interpretation is necessary; the statute’s words are common, everyday words that an ordinary person can understand without difficulty. And because the statute’s protections are constitutional, as explained at length above, Plaintiffs’ attempt to graft a vagueness challenge onto the First Amendment challenge must be rejected.
Plaintiffs attempt to draw the Court in with a misleading parade of “what ifs.” But that is not the appropriate analysis. “[S]peculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications.’” Hill, 530 U.S. at 733 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)). Section 759 is valid and understandable; that Plaintiffs can draw up hypotheticals in which their members might not know whether their conduct is proscribed by Section 759 does not defeat it. The law requires just the opposite.
To the extent any part of Section 759 could be deemed vague, this Court should abstain from interpreting an unsettled element of state law, in accordance with Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941). “[T]o invoke
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Pullman abstention, a district court must ask whether the state statute is fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question . . . .” Jones v. Coleman, 848 F.3d 744, 752 (6th Cir. 2017) (cleaned up). “[T]raditional abstention principles apply to civil rights cases.” Romero v. Coldwell, 455 F.2d 1163, 1167 (5th Cir. 1972) (abstaining in a one-man, one-vote case). Here, no Michigan court has interpreted the provisions that Plaintiffs object to. Thus, abstaining to allow a Michigan Court to interpret the statute may eliminate the federal constitutional question.
At bottom, Plaintiffs are not likely to succeed on the merits of their vagueness claim.
c. The Voting Rights Act does not preempt Section 759. Plaintiffs argue that Section 759’s prohibition on the unauthorized distribution and solicitation of absentee ballot applications violates the Voting Rights Act and is therefore preempted. But this claim is individual to a voter who is aggrieved by the purported violation. No individual voter is a party here, so this claim fails for that reason alone. Moreover, there is no conflict between Section 759 and the Voting Rights Act. The Court has already determined as a matter of law that Plaintiffs do not have standing, in a representative capacity, to bring claims that are individual in nature. See May 22, 2020 Opinion and Order, Dkt. 59, p. 26. The Voting Rights Act
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preemption claim is just such an allegation. That is, the Voting Rights Act protects individual voters—not organizations like Plaintiffs. The person aggrieved by the purported conflict that Plaintiffs identify is the voter who Plaintiffs claim will not be able to have her absentee ballot application returned. Any cause of action alleging that the Voting Rights Act preempts Michigan election law belongs to that individual voter, not a third-party organization trying to help them.
This view is consistent with the language and intent of the Voting Rights Act. Congress amended the Voting Rights Act in 1975 to confer standing upon all “aggrieved persons.” The Supreme Court has reiterated that “any person whose right to vote is impaired has standing to sue.” Gray v. Sanders, 372 U.S. 368, 375 (1963) (emphasis added). The Plaintiffs are institutions, not “aggrieved persons” under the Voting Rights Act. Accordingly, they lack standing to bring the Voting Rights Act claim.
Even if Plaintiffs had standing to bring claims under the Voting Rights Act, their claim that Section 759 is preempted fails. Conflict preemption occurs where compliance with both a federal and state regulation is physically impossible or “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v Nat’l Solid Wastes Mgmt Ass’n, 505 U.S. 88, 98 (1992). Because Michigan’s prohibition on the unauthorized prohibition and solicitation of absentee ballots does not “stand[] as an obstacle to the
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accomplishment and execution” of Congress’s objectives, there is no preemption. Section 208 of the Voting Rights Act provides as follows: Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union. Plaintiffs ask this Court to construe “a person of the voter’s choice” to mean
that the voter may choose any person, without limitation, so the “registered elector” requirement in Section 759 must conflict. Under Plaintiffs’ interpretation, Michigan would have to let an incarcerated person out of prison or tolerate a six-year-old transporting absentee ballot applications if those were the “persons” the applicant requested. Such a construction is absurd; indeed, nothing in Section 208 bars a state from reasonably restricting the individuals permitted to return absentee ballot applications.
It is beyond debate that the Supreme Court allows the states to regulate elections, provided that those restrictions are reasonable and non-discriminatory. “The language of Section 208 allows the voter to choose a person who will assist the voter, but it does not grant the voter the right to make that choice without limitation.” Ray v. Texas, No. 06-CV-385, 2008 WL 3457021, at *7 (E.D. Tex. Aug. 7, 2008). Section 208’s legislative history supports the view that it does not usurp a state’s right to impose reasonable regulations in this area of election law: “[T]he committee has concluded that the only kind of assistance that will make fully ‘meaning’ the
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vote of the blind, disabled, or those who are unable to read or write is to permit them to bring into the voting booth a person whom the voter trusts and who cannot intimidate him.” S. Rep. 97-417, 1982 U.S.C.C.A.N. 177. Indeed, at least one other district court has recognized that “[t]he legislative history 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 certain individuals.” Ray, 2008 WL 3457021, at *7.
State courts confronted with this same preemption question on similar laws have held reached the same conclusion. In Qualkinbush v. Skubisz, the Appellate Court of Illinois held that an Illinois statute limiting the persons eligible to return an absentee ballot did not conflict with the Voting Rights Act. 826 N.E.2d 1181 (Ill. Ct. App. 2004). See also DiPietrae v. City of Philadelphia, 666 A.2d 1132, 1133 (Pa. Commw. Ct. 1995) (upholding a Pennsylvania statute limiting the persons for whom individuals may act as agents to obtain absentee ballot applications, deliver absentee ballot applications, obtain absentee ballots, or deliver completed absentee ballots).
The prohibition on the unauthorized distribution and solicitation of absentee ballot applications is nearly identical to the laws addressed in Ray, Qualkinbush, and DiPietre. In each of those cases, the courts recognized the states’ right to impose reasonable, non-discriminatory restrictions on who could assist with the delivery of
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absentee ballots or applications, notwithstanding Section 208. In each case, the court found that the statute at issue did not conflict with Section 208 and, therefore, upheld the statute. Michigan’s prohibition on the unauthorized distribution and collection of absentee ballots is not preempted by Section 208.
2. Section 931(1)(f) - The prohibition of payment for transportation to elections is a valid and constitutional exercise of the Legislature’s authority.
Plaintiffs’ challenge to Section 931(1)(f), which prohibits hiring a motor vehicle to transport a voter to the polls, will also fail on the merits. First, it governs non-expressive conduct, regulations of which are reviewed for rational basis—a standard easily met here. Second, the statute is not vague; people of ordinary intelligence can easily understand it. Finally, the statute is not subjection to express or conflict preemption.
a. The prohibition of payment for transportation to elections is constitutional.
Like Section 759, Section 931(1)(f) is subject to rational-basis review rather than the strict scrutiny Plaintiffs seek. Again, under Anderson-Burdick, the Court first examines the burden the regulation imposes on the right to vote. Burdick, 504 U.S. at 434. As explained in detail above, when the regulation imposes “‘reasonable nondiscriminatory restrictions’” on the right to vote, a court will apply rational basis review, and “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788). Closer scrutiny
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accompanies severe restrictions like poll taxes, and a flexible intermediate scrutiny exists between the two poles. Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). The protections in Section 931(1)(f) are reasonable and nondiscriminatory and do not burden Plaintiffs’ rights. Thus, rational-basis review is appropriate, and Michigan’s crucial regulatory interests support the statute’s constitutionality.
Section 931(1)(f) provides: 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. Mich. Comp. Laws § 168.931(1)(f). Contrary to Plaintiffs’ argument, this provision—which regulates nonexpressive conduct only—does not implicate the First Amendment. The Fifth Circuit’s decision in Steen is again instructive. As discussed, Steen concerned various aspects of voter-registration organization, including the process by which certain individuals could be deputized to transport completed registration forms. 732 F.3d at 385. The Fifth Circuit rejected the plaintiffs’ invitation to apply exacting scrutiny to this law, holding that there “is nothing ‘inherently expressive’ about receiving a person’s completed application and being charged with getting that application to the proper place.” Id. at 392 (cleaned up). Driving a voter is exactly like driving a completed application or a completed ballot. There is nothing inherently political or expressive about the act of ensuring that voters get from Point A to Point B—unless the purpose of the transportation is
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to influence the voter’s choice, which even Plaintiffs agree is improper. Thus, Section 931(1)(f) is subject to rational-basis scrutiny.
Trying to invoke strict scrutiny, Plaintiffs again point the Court to Meyer and Buckley. But those cases are easily distinguishable here, too, because they involve petitions. Meyer, 486 U.S. 414; Buckley, 525 U.S. 182. “Petitions . . . are the circulator’s speech.” Steen, 732 F.3d at 390. But a voter’s decision to get herself to the polls “is the voter’s speech,” not the “speech” or “expression” of the person or group that endeavors to get that voter to the polls. Id. Because there is no expressive conduct in the act of transporting a person from Point A to Point B (nor in paying for that action to take place) Meyer and Buckley do not apply and the proper scrutiny is rational basis.
Plaintiffs also argue that Section 931(1)(f) unconstitutionally imposes a $0 spending limit on an avenue of political speech. But transporting voters from Point A to Point B is not political speech or expressive conduct, as explained above. Plaintiffs would have the Court apply Citizens United, where an organization was prohibited from spending money to air a documentary critical of a particular candidate. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 354 (2010). But the two situations could hardly be more different. Perhaps Citizens United would matter if Michigan law prohibited paying a billboard truck or a sky-writer, but that is not this case. Michigan law simply prohibits paying for transportation—
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an inherently non-expressive action that does not implicate the First Amendment. Moreover, Section 931(1)(f) is content-neutral. The prohibition on paying for
voter transportation applies to all candidates, political parties, unions, corporations, and individuals—anyone considered a “person” under Michigan law. See Mich. Comp. Laws § 8.31. In its collective wisdom, the Michigan Legislature prohibited anyone from paying for voters’ transportation to the election.
Michigan’s compelling interest in the prevention of fraud and undue influence justifies any minimal burden on Plaintiffs. The Sixth Circuit has recognized that under these circumstances—that is, where the minimally burdensome statute is subject to rational-basis review—“the State’s important regulatory interests are generally sufficient to justify the restrictions.” Ohio Council 8, 814 F.3d at 335.
There is no doubt that a state has an interest in preventing fraud and the dilution of valid votes. Initiative & Referendum Inst., 241 F.3d at 616 (holding that “the State has a compelling interest in preventing fraud”) (emphasis added); see also Crawford, 553 U.S. at 196 (“While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.”); Storer, 415 U.S. at 730 (noting that a state has the power to engage in “substantial regulation of elections” in order to ensure elections are fair, honest, and orderly). Likewise, “it is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and
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campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
The potential for fraud and corruption in this area is apparent on its face. One potential evil thwarted by Section 931(1)(f) is a quid pro quo exchange for transportation to the polls. Indeed, as the Attorney General compellingly explains in her response to the Motion for Preliminary Injunction, earlier versions of this provision specifically prohibited quid pro quo arrangements. But the elimination of the quid pro quo language shows the Legislature recognized that injecting money into this otherwise innocuous part of the voting process creates an unnecessary risk of corruption, even in the absence of an express exchange.
The Legislature disagrees with Attorney General Nessel’s suggestion in her response that “Plaintiffs can spend any amount of money to transport voters to elections so long as the transportation is not a ‘quid pro quo’ for the voters’ support of particular candidates or ballot proposals supported by Plaintiffs.” Dkt. 30, AG’s Resp to Mot. for P.I., p. 45. This interpretation is not consistent with the statutory language, which prohibits paying for others transportation to the polls. See Fluor Enterprises, Inc. v. Revenue Div., Dep't of Treasury, 730 N.W.2d 722, 725 (Mich. 2007) (“If the statute is unambiguous it must be enforced as written”) (cleaned up). As explained above, the statute makes good sense as written. Surely, the state has an interest in preventing an organization from sending a bus loaded with opulent
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food and drink and plastered with a preferred candidate’s face to undecided voters’ homes. The statute is valid as written and should be interpreted without further construction.
That Michigan may not have suffered a recent spate of voter-intimidation or vote-buying incidents associated specifically with paid transportation to the polls is no help to Plaintiffs. Indeed, the U.S. Supreme Court easily dispensed with such an argument in Burson v. Freeman, 504 U.S. 191 (1992). “The fact that these laws have been in effect for a long period of time,” it reasoned, “makes it difficult for the States to put on witnesses who can testify as to what would happen without them.” Id. at 208; see also id. at 214–16 (Scalia, J., concurring). And to the extent Plaintiff tries “to minimize the risk of vote buying as a relic of a bygone electoral era,” the Sixth Circuit has recognized that “plenty of cases—in this circuit alone—show otherwise.” Crookston v. Johnson, 841 F.3d 396, 400 (6th Cir. 2016), citing United States v. Robinson, 813 F.3d 251, 254 (6th Cir. 2016) (affirming a vote-buying conviction); United States v. Turner, 536 Fed. App’x 614, 615 (6th Cir. 2013) (same); United States v. Young, 516 Fed. App’x 599, 600–01 (6th Cir. 2013) (same).
Plaintiffs also suggest that Michigan has no interest in regulating paid voter transportation because other Michigan statutes prohibit quid pro quo arrangements. But that flips the analysis on its head. In Plaintiffs’ world, the Court would be obligated to strike down a law restricting the sale of fireworks because we already
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have statutes that criminalize arson. Surely nobody disputes the state’s interest in regulating the sale and possession of dangerous pyrotechnics, despite the existence of laws that say not to shoot them inside buildings. The same logic supports Section 931(1)(f). Yes, Michigan has statutes protecting various parts of the election process. But that does not amount to a prohibition on the Legislature’s ability to protect a specific aspect of the voting process from a particular evil.
Further, as with Section 759, Plaintiffs’ decision to mount a facial challenge heightens the wall they must scale. “Facial challenges are disfavored for several reasons.” Grange, 552 U.S. at 450. First, “[c]laims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records.” Id. (cleaned up). Facial challenges “also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.” Id. (cleaned up). Because facial challenges are frowned upon, Plaintiffs “bear a heavy burden in demonstrating a substantial likelihood of success[.]” Browning, 575 F. Supp. 2d at 1314; see also Crawford, 553 U.S. at 200 (“Given the fact that petitioners have advanced a broad attack on the constitutionality of [the election regulation], seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of
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persuasion.”). Because Section 931(1)(f) is a content-neutral law that does not govern
expressive conduct, it is subject to rational-basis review. Michigan’s compelling interest in preventing vote-buying, fraud, and undue influence easily satisfies any level of scrutiny. Thus, Plaintiffs are unlikely to succeed on the merits of this claim.
b. Section 931(1)(f) is clear and understandable. As explained above, a statute should not be struck as facially vague unless a plaintiff has “demonstrated that the law is impermissibly vague in all of its applications.” Hargett, 700 F.3d at 825 (quoting Vill. Of Hoffman Estates, 455 U.S. at 497). “[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Williams, 553 U.S. at 304 (2008) (quoting Ward, 491 U.S. at 794 (1989)). “[F]ederal courts must construe challenged state statutes, whenever possible, so as “to avoid constitutional difficulty.” Davet, 456 F.3d at 554 (cleaned up). “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Chapman, 500 U.S. at 464. There are two circumstances under which a law may be challenged for vagueness: “First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732 (citing Morales, 527 U.S. at 56–57). Section 759 is not vague under either test.
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Plaintiffs—with a straight face—argue that no ordinary person could possibly understand what it means “to hire a motor vehicle.” Dkt. 22-1, Plfs’ P.I. Br., p. 41. Plaintiffs suggests that “people can differ in their interpretation of this restriction.” Id. Even if that were true, and it’s not, the possibility that some people might differ in their interpretation is not the standard—the question is whether the law is understandable by people of ordinary intelligence. Section 931(1)(f) far exceeds this bar.
The notion that Section 931 requires additional guidance is not grounded in reality. The words Plaintiffs say are confusing—“to hire a motor vehicle”—are plain, everyday words. “Hire” means “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 of Am, Inc., 2008 WL 2357643, at *3 (Mich. Ct. App., June 10, 2008). And motor vehicle is self-evident, particularly in home state of the Big 3 automakers and the Motor City. Thus, the statute prohibits engaging the services (for a wage or set price) of a motor vehicle to transport a voter to the polls. No additional interpretation is necessary; the statute’s words are common, everyday words that ordinary people can understand without difficulty, and they must be interpreted as written. See Fluor Enterprises, Inc., 477 Mich. at 174 (“If the statute is unambiguous it must be enforced as written”) (cleaned up).
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Plaintiffs again unleash a cascade of hypothetical situations to suggest that the statute is vague. But “[s]peculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications.’” Hill, 530 U.S. at 733 (quoting Raines, 362 U.S. at 23). While creative, Plaintiffs’ ginned-up what-ifs will not defeat Section 931(1)(f) because it is clear and understandable in the vast majority of its applications. Plaintiffs likely will not succeed on the merits of this claim.1
c. Federal law neither expressly nor impliedly preempts Section 931(1)(f).
Plaintiffs argue that Section 931(1)(f) is expressly preempted by the Federal Election Campaign Act (FECA). Not so. FECA purports to expressly preempt any limitations on contributions and expenditures with respect to Federal Elections, but Section 931(1)(f) does not limit such contributions and expenditures. Moreover, Plaintiffs’ ignore FECA’s carve-out for state statutes that protect against abuses of the franchise. Thus, Plaintiffs’ preemption claim fails.
The Federal Regulations at issue, 11 C.F.R. § 108.7, provide: (b) Federal law supersedes State law concerning the—
* * *
1 To the extent Section 931(1)(f) could be interpreted as constitutionally vague, the same reasons justifying Pullman abstention with respect to Section 753 also support abstention here.
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(3) Limitation on contributions and expenditures regarding Federal candidates and political committees. Plaintiffs’ reliance on Weber v. Heaney, 995 F.2d 872, 874 (8th Cir. 1993) to argue express preemption is misplaced. Weber concerned a Minnesota law that limited total campaign contributions and expenditures. Id. at 874. The Minnesota law at issue was clearly within the ambit of §108.7 and FECA. Unlike the restriction in Weber, Section 931(1)(f) does not limit expenditures of Federal candidates or political committees. Rather, it eliminates one item on which a candidate or committee might spend their budget. But there is no limitation on total contributions or expenditures like in Weber. The Legislature’s reading is easier than Plaintiffs’ reading to harmonize the carve-outs contained in 11 C.F.R. § 108.7. Specifically, the federal regulations expressly carved out from preemption, “[s]tate laws which provide for the prohibition of false registration, voting fraud, theft of ballots, and similar offenses.” 11 C.F.R. §108.7(c)(4). As explained above, Section 931(1)(f) is such a state law because it protects against quid pro quo and voter fraud. Thus, it is consistent with FECA—rather than conflicting—that candidates and political committees would be barred from spending money in one particular area that is fraught with a risk of fraud. Nor does Section 931(1)(f) conflict with the federal regulations that allow corporations and unions to “[p]rovide transportation to the polls.” 11 C.F.R. § 114.4(d)(1). Under Section 931(1)(f), a corporation or union may, for example,
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provide such transportation, through their own employees or through volunteers. These organizations are only prohibited from paying someone else to transport voters. These provisions are in harmony with each other; they do not conflict. Accordingly, Plaintiffs’ claims fail on the merits here as well.
C. Plaintiffs cannot show any harm, much less irreparable harm, in the absence of an injunction.
Plaintiffs cannot show that they will be imminently and irreparably injured in the absence of a preliminary injunction. See Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 22 (2008); Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247–48 (11th Cir. 2016). “A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (cleaned up). Thus, “even if Plaintiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper.” Id.
With respect to Section 759, the state has already pledged to issue statewide absentee ballot applications. See Detroit Free Press, Secretary of State: All Michigan voters will get absentee ballot applications at home <https://bit.ly/ 2Ax8878> (May 19, 2020). Under Section 759(8), a person violates Michigan Election Law when she “distributes” and “solicits” absentee ballot applications. Unless Plaintiffs intend a redundant distribution—and none have suggested that they intend to waste money in such a fashion—they cannot violate the statute during the
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August primary election or the November general election because they would not be distributing applications. Thus, the emergencies that Plaintiffs initially raised alarm bells about no longer exists. The Secretary of State has done Plaintiffs’ work for them.
Plaintiffs’ argument that they will suffer irreparable injury unless this Court enjoins these laws rings especially hollow here. These laws have been on the books for decades, through countless elections. Yet Plaintiffs took no action until late 2019, when they filed suit and asked the Court to rush through an “expedited” case schedule. The law is clear “that a party’s failure to act with speed or urgency in moving for a preliminary injunction necessarily undermines a finding of irreparable harm.” Wreal, 840 F.3d at 1248; see also Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (holding that the plaintiffs’ claim of “a serious injury become less credible by their having slept on their rights”). Plaintiffs provide no explanation for not challenging these laws sooner.
Moreover, even if Plaintiffs could demonstrate a harm, their motion should still be denied. “[A] finding that there is simply no likelihood of success on the merits is usually fatal” to a request for injunctive relief. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
D. Issuing a Preliminary Injunction is Contrary to the Public Interest. “[A]ny time a State is enjoined by a court from effectuating statutes enacted
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by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301 (2012). Thus, the public interest cuts against enjoining a Michigan law that has been on the books for decades.
Additionally, it is contrary to the public interest for courts to interfere in election laws in the run-up to an election. See, e.g., Williams v. Rhodes, 393 U.S. 23, 34 (1968) (declining to order new ballots printed at a “late date” even where existing ballots unconstitutionally excluded a certain candidate); North Carolina v. League of Women Voters of N Carolina, 574 U.S. 927 (2014) (granting stay to prevent interference with election procedures roughly one month before election); Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (staying a district court’s injunction “given the imminent nature of the election”); Serv Emps Int’l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute injunctions changing election procedures are strongly disfavored.”); Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F3d 999, 1012 (6th Cir. 2006) (vacating in part a temporary restraining order that “creates disorder in electoral processes”). The August 4, 2020, primary election is quickly approaching, and the November election comes close on its heels. Indeed, we are already within the 75-day window during which a voter can apply for an absentee ballot for the August 4 primary election. If the Court issues the injunction Plaintiffs request, it will upend a process that has
37

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worked in Michigan for decades. Surely, the public interest weighs in favor of judicial restraint.
CONCLUSION The Legislature respectfully requests that the Court deny Plaintiffs’ motion for preliminary injunction.

Dated: June 5, 2020

Respectfully submitted,
BUSH SEYFERTH PLLC Attorneys for the Michigan Senate and the Michigan House of Representatives
By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Michael K. Steinberger (P76702) 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com steinberger@bsplaw.com

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CERTIFICATE OF SERVICE I hereby certify that on June 5, 2020, I electronically filed the foregoing with the Clerk of the Court using the ECF System, which will send notification to all ECF counsel of record.
By: /s/ Patrick G. Seyferth Patrick G. Seyferth
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 Case 4:19-cv-13341-SDD-RSW ECF No. 70 filed 06/05/20 PageID.1202 Page 1 of 57

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and
Michigan Republican Party And Republican National Committee,

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN
INTERVENORS MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION

Intervening Parties,

and

Michigan House of Representatives, And Michigan Senate,

Intervening Parties. _______________________________________________________________/

INTERVENORS MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE’S RESPONSE IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION

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Table of Contents
CONCISE STATEMENT OF ISSUES PRESENTED................................................................. vii I. Whether Plaintiffs’ motion for a preliminary and permanent injunction should be denied where there is no likelihood of success on the merits and no demonstration of irreparable harm? ........................................................... vii
CONTROLLING OR MOST APPROPRIATE AUTHORITY ................................................... vii
INTRODUCTION .......................................................................................................................... 1
CHALLENGED ELECTION LAWS............................................................................................. 2 I. Harvesting Ban, MCL 168.759 ............................................................................... 2 II. Paid Driver Ban, MCL 168.931(1)(f) ..................................................................... 6
PROCEDURAL HISTORY............................................................................................................ 7
ARGUMENT .................................................................................................................................. 7 I. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the Merits of Their Claims. ................................................................................................. 8 A. The Harvesting Ban is constitutional and not preempted by federal law............................................................................................................... 9 1. The Harvesting Ban does not unconstitutionally infringe on First Amendment rights............................................................................................................. 10 a. The First Amendment is not applicable as the Harvesting Ban does not affect political speech or associational rights. ................................ 11 b. If the First Amendment is applicable, then Plaintiffs’ speech and association claim fails under the Anderson-Burdick framework. ............................................................................................................ 16 c. The Harvesting Ban survives exacting scrutiny........................................ 25 2. The solicitation ban is not vague. ......................................................................... 27 3. Plaintiffs have not established a likelihood of success on their Voting Rights Act claim. .................................................................................................. 31 B. The Paid Driver Ban is constitutional and not preempted by federal law. ............................................................................................................................... 33 1. The Paid Driver Ban does not unconstitutionally infringe on First Amendment rights............................................................................................................. 33 2. Paid Driver Ban is not unconstitutionally vague and overbroad. ......................... 35 3. FECA does not preempt Paid Driver Ban............................................................. 38 a. Plaintiffs have failed to allege a cause of action for its FECA preemption theory. ..................................................................................... 39 b. This Court is not a proper venue for adjudication of Plaintiffs’ FECA preemption claim. . ................................................................... 40
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Case 4:19-cv-13341-SDD-RSW ECF No. 70 filed 06/05/20 PageID.1204 Page 3 of 57 c. Courts have narrowly interpreted the FECA preemption clause, which does not preempt the Paid Driver Ban. .......................................... 41 d. The plain text of the FEC regulations cited by Plaintiffs do not preempt the Paid Driver Ban. ......................................................................... 44
II. Plaintiffs Cannot Establish That They Will Suffer Irreparable Harm Without the Injunction. ................................................................................................................. 46 III. The Balance of Harms Weighs Heavily Against Plaintiffs Because Their Requested Relief is Inappropriate as a Matter of Law and Because it Would Harm the Public Interest. ........................................................................................................................ 47 CONCLUSION............................................................................................................................. 50
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Table of Authorities
Cases Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018) ................................. 14 Abbott v. Perez, 138 S. Ct. 2305 (2018) ....................................................................................... 48 Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) .................................................................... 46 ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636 (6th Cir. 2015) ....................................... 8 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .................................................... 31 Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015) ............................................. 39 Armstrong v. U.S. Fire Ins. Co., 606 F. Supp. 2d 794 (E.D. Tenn. 2009).................................... 45 Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 (6th Cir. 2000)................... 31 Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) ................................................................ 32 Benisek v. Lamone, 138 S. Ct. 1942 (2018)............................................................................ 46, 49 Burdick v. Takush.......................................................................................................................... vii Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008)................................................. 23 Citizens United v. FEC, 558 U.S. 310 (2010)............................................................................... 26 City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427 (6th Cir. 2014) .......................... 8 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) ................................................. 10 Clingman v. Beaver, 544 U.S. 581 (2005) .................................................................................... 20 Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) ......................... 48 Colten v. Kentucky, 407 U.S. 104 (1972) ..................................................................................... 28 Cook v. Gralike, 531 U.S. 510 (2001) ............................................................................................ 9 Country Club v. Jefferson Metropolitan, 5 Ohio App.3d 77 (7th Dist. 1981).............................. 49 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ................................................ passim Davet v. Cleveland, 456 F.3d 549 (6th Cir. 2006). ....................................................................... 28 Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411 F.3d 777 (6th Cir. 2005) ...... 29 Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020)............................................... 14 Dewald v. Wriggelsworth, 748 F.3d 295 (6th Cir. 2014) ................................................. vii, 42, 43 Downhour v. Somani, 85 F.3d 261 (6th Cir. 1996)....................................................................... 39 Esshaki v. Whitmer, No. 20-1336; 2020 WL 2185553 (6th Cir. May 5, 2020)............................ 48 Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214 (1989) ................................ 49 Ex Parte Young, 209 U.S. 123 (1908) .......................................................................................... 40 Farnsworth v. Nationstar Mortg., LLC, 569 F. App’x 421 (6th Cir. 2014) ................................... 8 Fishman v. Schaffer, 429 U.S. 1325 (1976).................................................................................. 47 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ................................................................................ 40 Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) ........................................ 45 Grayned v. Rockford, 408 U.S. 104 (1972)). .................................................................... 27, 29, 30 Green Party of Tenn. v. Hargett, 791 F.3d 684 (6th Cir. 2015) ............................................. 17, 27 Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2004)..................................................................... 2, 23 Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) ................................... 31 Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)............................................ 9 In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1
(2007) ........................................................................................................................................ 21 Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) ........................................ 22 INS v. Pangilinan, 486 U.S. 875 (1988) ....................................................................................... 40 John Doe No. 1 v. Reed, 561 U.S. 186 (2010) .................................................................. vii, 23, 26 Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012)........................................................................... 8
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Karl Rove & Co. v. Thornburg, 39 F.3d 1273 (5th Cir. 1994) ..................................................... 42 League of Women Voters v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019) ........................... 15 Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................................ 48 Loan Assn. v. Guerra, 479 U.S. 272 (1987) ................................................................................. 41 Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................................... 46 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ........................................................ 48 Malone v. White Motor Corp., 435 U.S. 497 (1978), ................................................................... 41 Mazurek v. Armstrong, 520 U.S. 968 (1997) ............................................................................ 7, 46 McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802 (1969) ............................... 2, 33 Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656 (6th Cir. 2016) .......................... 17 Millsaps v. Thompson, 259 F.3d 535 (6th Cir. 2001) ................................................................... 42 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007)...................................... 28 Nat’l Fed. Of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). .................................................. 11, 36 Nat’l Viatical, Inc. v. Universal Settlements Intern., Inc., 716 F.3d 952 (6th Cir. 2013)............. 47 NEOCH v. Husted, 837 F.3d 612 (6th Cir. 2016)......................................................................... 19 O’Toole v. O’Connor, No. 15-1446, 2016 WL 4394135 (S.D. Ohio Aug. 18, 2016) .................. 29 Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012).............................................................. 17 OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017).................................................... 32 Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016)............................... 18 Ohio Dem. Party v. Husted, 834 F.3d 620 (6th Cir. 2016) .................................................... passim People v. Dewald, 267 Mich. App. 365 (2005). ........................................................................... 43 People v. Pinkney, 501 Mich. 259 (2018)..................................................................................... 37 Platt v. Bd. of Com’rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235 (6th
Cir. 2018). ........................................................................................................................... vii, 28 Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) .............................................................................. 21, 26 Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1197 (Ill. App. Ct. 2004) .......................................... 24 Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). ................................................. 30 Rumsfeld v. Forum for Academic & Inst. Rights, 547 U.S. 47 (2006) .................................. passim Schickel v. Dilger, 925 F.3d 858 (6th Cir. 2019) .......................................................................... 20 Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019)................................................................ vii, 8, 17 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996 .................................................................. 40 State Farm Bank v. Reardon, 539 F.3d 336 (6th Cir. 2008)......................................................... 38 States v. Berks Cnty., 250 F. Supp. 2d 525 (E.D. Pa. 2003) ......................................................... 32 Stern v. General Elec. Co., 924 F.2d 472 (2d Cir. 1991) ............................................................. 42 Storer v. Brown, 415 U.S. 724, 730 (1974) .................................................................................... 9 Summit Cnty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547 (6th Cir. 2004)....... 8 Tech & Crystal, Inc. v. Volkswagen of Am., 2008 WL 2357643 (Mich. App. 2008) ................... 37 Texas v. Johnson, 491 U.S. 397 (1989) ...................................................................... vii, 11, 13, 32 Thompson v. DeWine, ___ F.3d ___; 2020 WL 2702483 (6th Cir. 2020).................................... 17 United States v. Hollern, 366 F. App’x 609 (6th Cir. 2010)......................................................... 29 United States v. O’Brien, 391 U.S. 367 (1968) ............................................................................ 12 United States v. Parrish, 942 F.3d 289 (6th Cir. 2019) ................................................................ 28 United States v. Stevens, 559 U.S. 460 (2010).............................................................................. 11 United States v. Williams, 553 U.S. 285 (2008) ........................................................................... 29 United States v. Wright, 774 F.3d 1085 (6th Cir. 2014) ............................................................... 29 University of Tex. v. Camenisch, 451 U.S. 390 (1981)................................................................. 47
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Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)............................................................................ 22 Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) ..................................................... vii, 2 Wash. State Grange v. Wash. State Republican Party Wash. State Grange, 552 U.S. 442 (2008)
............................................................................................................................................. 10, 11 Wimbush v. Wyeth, 619 F.3d 632 (6th Cir. 2010)......................................................................... 31 Winter v. NRDC, Inc., 555 U.S. 7 (2008) ................................................................................. 8, 46 Wyeth v. Levine, 555 U.S. 555 (2009) .......................................................................................... 39 Statutes MCL 168.759(4), (5), (6). Section 759(4) ...................................................................................... 8 Other Authorities 42 U.S.C. § 1983........................................................................................................................... 47 52 U.S.C. § 10310(c)(1)................................................................................................................ 41 52 U.S.C. § 10508......................................................................................................................... 40 52 U.S.C. § 30106(b) .................................................................................................................... 48 52 U.S.C. § 30109(a)(1); 11 C.F.R. § 111.4 ................................................................................. 49 52 U.S.C. § 30109(a)(8)(A) .......................................................................................................... 49 52 U.S.C. § 453............................................................................................................................. 50 Rules 11 C.F.R. § 108.7(b)(3)................................................................................................................. 50 11 C.F.R. § 114.4(d)(1) and 114.3(c)(4)(i) ................................................................................... 52 Constitutional Provisions Const. 1963, art. 2 § 4(2) ........................................................................................................ 11, 29 U.S. Const. art. I, § 4, cl. 1...................................................................................................... 11, 17
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CONCISE STATEMENT OF ISSUES PRESENTED I. Whether Plaintiffs’ motion for a preliminary and permanent injunction should
be denied where there is no likelihood of success on the merits and no demonstration of irreparable harm?
CONTROLLING OR MOST APPROPRIATE AUTHORITY Rumsfeld v. Forum for Academic & Inst. Rights, 547 U.S. 47 (2006) Texas v. Johnson, 491 U.S. 397 (1989) Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) Burdick v. Takushi, 504 U.S. 428 (1992) John Doe No. 1 v. Reed, 561 U.S. 186 (2010) Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019) Ohio Dem. Party v. Husted, 834 F.3d 620 (6th Cir. 2016) Platt v. Bd. of Com’rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d
235 (6th Cir. 2018) Dewald v. Wriggelsworth, 748 F.3d 295 (6th Cir. 2014) Voting for Am., Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013)
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INTRODUCTION Due to the COVID-19 pandemic, there is a heightened focus on absentee voting, with local election officials across the country expecting significant increases of votes by absent ballots in the November General Election. The Michigan Secretary of State has stated her intent to send every registered voter an absent voter (AV) ballot application for the August primary and November General Election. Because they 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.1 Michigan, like every other 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 (1) prohibit strangers from soliciting and returning AV ballot applications from Michigan voters, MCL 168.759 (“Harvesting Ban”), and (2) prohibit drivers from being paid for transporting Michigan voters to the polls, MCL 168.931 (“Paid Driver Ban”). Both laws implement 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. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191-200 (2008). Plaintiffs bring disfavored facial challenges to the Harvesting Ban and Paid Driver Ban, seeking extraordinary relief: a preliminary and permanent injunction “short circuit[ing] the democratic process” and enjoining in their entirety two state
1 See, e.g., Ex. 1, Portnoy et al., Voting problems in D.C., Maryland lead to calls for top officials to resign, https://www.washingtonpost.com/voting-problems-in-dcmaryland.html (accessed June 5, 2020).

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laws that “embody[] the will of the people” and reflect the Legislature’s appropriate effort to uphold the integrity of Michigan’s elections. Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013). Plaintiffs offer no basis in law or fact for the Court to take such dramatic action. Instead, they raise free speech claims for nonprotected conduct that conveys no political expression, conjure far-fetched hypotheticals in an attempt to manufacture vagueness, and point to inapposite federal law that neither expressly nor impliedly preempts Michigan’s long-standing election laws. Importantly, as it relates to AV ballot applications, because there is no constitutional right to vote absentee, Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004), restrictions on absentee voting do not implicate the right to vote at all because in-person voting remains available. McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807 (1969).
Plaintiffs have not carried—and cannot carry—their heavy burden to prove that they are entitled to the extraordinary relief of an injunction on any of their facial challenges. For these reasons, the only lawful course here is to deny Plaintiffs’ motion for preliminary and permanent injunction.
CHALLENGED ELECTION LAWS I. Harvesting Ban, MCL 168.759
Plaintiffs style MCL 168.759 as a restrictive “Absentee Ballot Organizing Ban.” (ECF No. 22-1, PageID 154). In fact, it is a minimally burdensome law narrowly tailored to protect the integrity of absent voter (AV) ballots by prohibiting certain behavior. Specifically, the law prohibits certain third-parties from returning
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AV ballot applications if they have “solicit[ed] or request[ed] to return the application.” MCL 168.759(5). This narrowly tailored common-sense restriction clearly falls within the scope of the Michigan Legislature’s power and responsibility 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); see also U.S. Const. art. I, § 4, cl. 1. The safeguards established by § 759 protect and facilitate, rather than impinge, “[t]he right [of qualified electors], 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.” Const. 1963, art. 2, § 4(1)(g).
Section 759 of the Michigan Election Law provides that to receive an AV ballot, a voter must request an application for an AV ballot and submit that application to his or her local clerk. A voter may apply for an AV ballot at any time during the 75 days before the primary or general election. MCL 168.759(1)-(2). “[T]he elector shall apply in person or by mail with the clerk” of the township or city in which the elector is registered. Id. Under the relevant provisions, there are two ways to apply for an AV ballot; (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning their written request or form application to their local clerk in person or by mail. MCL 168.759(1), (2), (6). Clerks have also been instructed by
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the Secretary of State for many years to accept applications sent by facsimile and email. (Ex. 2, Michigan’s Absentee Voting Process (Feb. 2019) p. 2).
Whether the voter uses an AV ballot application form or not, a voter may have
an immediate family member deliver his or her application, or the voter may request
that a registered voter return the application if he or she cannot appear in person to
deliver their application or cannot mail their application or return it by email or
facsimile. MCL 168.759(4), (5), (6). Section 759(4) provides in relevant part that:
A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application. [MCL 168.759(4)].
Where a form AV ballot application is used, the “application must be in
substantially the . . . form” described in §§ 759(5), (6), which includes a general
“warning” and a “certificate” portion to be completed by “a registered elector” delivering a completed application for a voter. MCL 168.759(5).2 The “warning”
must state in relevant part:
It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or
2 The 2020 Michigan AV Ballot Application is available online at: https://www.michigan.gov/documents/AbsentVoterBallot_105377_7.pdf (accessed June 5, 2020).
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solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk’s office must have credentials signed by the clerk. [Id. (emphasis added).]
The certificate for an authorized registered elector returning an AV ballot
application must state that:
I am delivering the absent voter ballot application of [name of voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law. [Id. (emphasis added).]
Section 759(6) provides that the AV ballot application form must include the
following instructions for the applicant:
Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.
Step 2. Deliver the application by 1 of the following methods:
(a) Place the application in an envelope addressed to the appropriate clerk and 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 service, or common carrier.
(b) Deliver the application personally to the clerk’s office, to the clerk, or to an authorized assistant of the clerk.
(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter’s household may mail or deliver the application to the clerk for the applicant.
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(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application. [MCL 168.759(6).]
As these forms make clear, only persons authorized by law, i.e. those described in § 759(4), may return a signed AV ballot application to a local clerk, and registered voters may not return a signed AV ballot application if they have solicited or requested to return the application. MCL 168.759(4)-(6).
Consistent with these statutes, § 759(8) provides that “[a] person who makes a false statement in an absent voter ballot application is guilty of a misdemeanor.” MCL 168.759(8) (emphasis added). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See MCL 168.931(1)(b)(iv) and (1)(n). These provisions combine to have the effect of prohibiting the collection or return of AV ballot applications by third-parties who are not postal carriers or immediate family members and either (1) solicit or request the AV ballot application for return or (2) are not registered Michigan voters.
II. Paid Driver Ban, MCL 168.931(1)(f) The Paid Driver Ban under MCL 168.931(1)(f) provides in full:
(1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:
* * * (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.
Under this provision, a person cannot pay for the transportation of a voter to the polls
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unless the voter is physically unable to walk to the election. This criminal provision has existed in some form since 1895. See 1895 P.A. 35. Michigan’s modern election law retained the provision when reenacted in 1954. 1954 P.A. 116. It was amended in 1982 to replace the term “carriage” with the term “motor vehicle,” consistent with Michigan’s Motor Vehicle Code. 1982 P.A. 201. A person who violates this provision is guilty of a misdemeanor. MCL 168.931(1).
PROCEDURAL HISTORY Intervenors Michigan Republican Party (“MRP”) and Republican National Committee (“RNC”) fully set forth the procedural history in its brief in support of its motion to intervene, which is incorporated herein. (ECF No. 33). On January 28, 2020, Plaintiffs Priorities USA (“Priorities”), Rise, Inc. (“Rise”), and the Detroit/Downriver Chapter of the A. Philip Randolph Institute Detroit/Downriver Chapter (“DAPRI”) (collectively “Plaintiffs”) filed the present motion for a preliminary and permanent injunction. (ECF No. 22). The Court ordered Intervenors and the Michigan Legislature to respond to Plaintiffs’ Motion by June 5, 2020. (ECF No. 60, PageID.1027). Now, Intervenors respond in opposition to Plaintiffs’ motion for preliminary and permanent injunction.
ARGUMENT “[A] preliminary injunction is an extraordinary and drastic remedy . . . that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The movant “bears the burden of justifying such relief,” and it is “never awarded as of right.” ACLU
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Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015). Indeed, “the proof required is much more stringent than the proof required to survive a summary judgment motion.” Farnsworth v. Nationstar Mortg., LLC, 569 F. App’x 421, 425 (6th Cir. 2014).
When determining whether to grant a party’s request for such a remedy, district courts must balance four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the 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.” City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014).
As to the first factor, a plaintiff must establish a “strong” likelihood of success, Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012); a mere “possib[ility]” of success does not suffice, Summit Cnty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004). Similarly, on the second factor, the plaintiff must show a likelihood, not just a possibility, of irreparable injury. Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008).
A movant is entitled to a permanent injunction only if it can establish that it “suffered a constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no adequate remedy at law.” Schmitt v. LaRose, 933 F.3d 628, 637 (6th Cir. 2019).
I. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the Merits of Their Claims.
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A. The Harvesting Ban is constitutional and not preempted by federal law. Plaintiffs allege that the Harvesting Ban violates the First and Fourteenth
Amendments because it is unconstitutionally vague and overbroad (Count I), and impermissibly infringes on Plaintiffs’ speech and associational rights (Count II). Plaintiffs further allege that the Voting Rights Act of 1965 preempts the challenged law (Count IV). The Court has dismissed Plaintiffs’ claim that the Harvesting Ban unduly burdens the right to vote (Count III). (ECF No. 59, PageID.1015).
There is no dispute that “voting is of the most fundamental significance under our constitutional structure.” Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). “It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). “[T]here must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974); see also Cook v. Gralike, 531 U.S. 510, 523-24 (2001) (explaining that the Elections Clause grants states the ability to regulate “notices, registration, supervision of voting, protection of voters, [and the] prevention of fraud and corrupt practices,” among other things) (emphasis added). The Constitution explicitly provides state legislatures with authority to regulate the “Times, Places and Manner of holding Elections.” U.S. Const. art. I, § 4, cl. 1. Federal courts should not casually “become entangled, as overseers and micromanagers, in the minutiae of state election processes, without careful
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consideration.” Ohio Dem. Party v. Husted, 834 F.3d 620, 622 (6th Cir. 2016). Federal law generally defers to the states’ authority to regulate the right to vote. Id. at 626 (citing Crawford, 553 U.S. at 203-04).
1. The Harvesting Ban does not unconstitutionally infringe on First Amendment rights.
Plaintiffs fail to establish that the Harvesting Ban burdens its speech and associational rights, specifically, their ability to broadly engage in political expression when interacting with Michigan voters to encourage them to participate in the political process. (ECF No. 17, ¶ 62).
Plaintiffs—as parties invoking the First Amendment—have the burden to prove it applies. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n. 5 (1984). Plaintiffs bring facial challenges to the challenged Michigan election laws, which are generally disfavored.3 That is because facial challenges “often rest on speculation,” raising “the risk of premature interpretation of statutes on the basis of factually barebones records,” and “run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange v. Wash. State Republican Party Wash. State Grange, 552 U.S. 442, 450 (2008). “[F]acial challenges threaten to short circuit the democratic process by
3 Although Plaintiffs do not expressly state that their claims are facial challenges, their claims and the relief that would follow—an injunction barring Defendant from enforcing the challenged laws—reach beyond the particular circumstances of these plaintiffs. Plaintiffs accordingly must satisfy standards for a facial challenge to the extent of that reach. See United States v. Stevens, 559 U.S. 460, 472-73 (2010).
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preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id.
A law implicating the right to expression may be invalidated on a facial challenge if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange, 552 U.S. at 449, n. 6). “[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Nat’l Fed. Of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012).
a. The First Amendment is not applicable as the Harvesting Ban does not affect political speech or associational rights.
The First Amendment protects speech as well as certain kinds of conduct, but only conduct that is “inherently expressive” is entitled to First Amendment protection. See Rumsfeld v. Forum for Academic & Inst. Rights, 547 U.S. 47, 66 (2006). To determine whether conduct is protected under the First Amendment, courts look to (1) 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 U.S. 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 Rumsfeld, 547 U.S. at 66 (holding that conduct regulated by the challenged law, which denied federal funding to universities that prohibited military recruiting on campus, was not inherently expressive conduct).
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Importantly, 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. See Clark, 468 U.S. at 297-98 (emphasizing that camping does not become speech protected by the First Amendment when demonstrators camp as part of a political demonstration); Rumsfeld, 547 U.S. 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 U.S. 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 conduct intends thereby to express an idea.”).
Plaintiffs argue that § 759 prevents their organizations from (1) educating Michigan voters about their options to use and request AV ballot applications; (2) distributing AV ballot applications; (3) offering to return AV ballot applications; and (4) returning AV ballot applications. (ECF No. 59, PageID. 992). It does not. As discussed above, § 759 does not restrict Plaintiffs’ freedom to educate Michigan voters about how to request AV ballot applications or vote absentee. MCL 168.759, supra pp. 4-8. Section 759 bears only on Plaintiffs’ ability to engage in certain conduct relating to the mechanism of AV ballot applications return, specifically, their desire to return AV ballot applications after soliciting or requesting to return them—conduct most akin to the non-discretionary act of delivering the mail.
The Harvesting Ban regulates the mechanics of the absentee voting process. It does not regulate an elector’s ability to vote by absent ballot, nor does it regulate any individual or organization’s right to engage in political speech. Accordingly, the
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First Amendment protection does not apply. Plaintiffs err in their contention that § 759 inhibits their protected political speech under the broad umbrella of “political expression” when interacting with Michigan voters. (ECF No. 17, ¶ 62). That a solicitation or request to return a voter’s AV ballot application may be initiated by or lead to a political conversation, does not transform (nonprotected) conduct into (protected) speech under the First Amendment. See Clark, 468 U.S. at 297-98; Rumsfeld, 547 U.S. at 66; O’Brien, 391 U.S. at 376. In sum, § 759 targets solely conduct, and does not “directly regulate[] core political expression.” (ECF No. 17, ¶ 63).
The process of returning an AV ballot application (or requesting to return an application) is neither inherently expressive nor inextricably entwined with protected speech. See Voting for Am., 732 F.3d at 389-90 (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 from otherwise protected speech by Plaintiffs or voters. Further, the “registered elector” requirement does not restrict or regulate who can advocate for absentee voting; it merely regulates the receipt and return of completed AV ballot applications—two non-expressive activities.
At least one court has concluded that “the collection and handling of voter registration applications is not inherently expressive activity.” League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1319 (S.D. Fla. 2008) (citing Rumsfeld, 547 U.S. at 66). And another court has followed the Fifth Circuit’s reasoning to conclude that “there is nothing inherently expressive or communicative
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about collecting a voter’s completed early ballot and delivering it to the proper place.” 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’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc), cert. petition pending. The same conclusion should follow the collection and handling of AV ballot applications, which have no expressive activity, even if done by a third-party collector.
Assuming arguendo that an AV ballot application is speech, the speech at issue is the elector’s speech indicating his or her desire to vote by absent ballot. Plaintiffs’ volunteers or employees may engage in protected speech when they encourage the elector to return the application, but the statute does not prohibit that speech, and only the elector “speaks” by actually submitting the AV ballot application. “One does not ‘speak’ in this context by handling another person’s ‘speech.’” Voting for Am., 732 F.3d at 390. Plaintiffs cannot turn their nonexpressive conduct into First Amendment-protected speech solely by nature of its proximity to the elector’s protected speech.
Plaintiffs’ reliance on Meyer and Buckley for applying exacting scrutiny is in error. In 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 U.S. 414, 425, 428 (1988). The Court in Buckley v. Am. Constitutional Law Found., extended Meyer in holding that other Colorado statutes regulating initiative-petition circulators violated the First Amendment, including a requirement that circulators be registered voters. 525 U.S. 182 (1999). Both Courts
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held that initiative petitions are protected speech of the petition circulators. Meyer, 486 U.S. 414 at 421-22; Buckley, 525 U.S. 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 U.S. at 194-95 (quoting Meyer, 486 U.S. at 422). Finally, the Courts held that Colorado had failed to justify these restrictions on the circulators’ speech. Meyer, 486 U.S. at 425-28; Buckley, 525 U.S. at 196-97.
Plaintiffs further rely on League of Women Voters v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019), in which the plaintiff organizations challenged Tennessee election laws restricting voter registration drives. The district court recognized that “encouraging others to register to vote” is “pure speech” and organizing others in support of voter registration efforts involves political association. Id. at 720.
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 circulation is protected as speech because the “circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Meyer, 486 U.S. at 422. The act of returning or delivering an AV ballot application, on 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. If the AV ballot application itself were speech, it would be the speech of the voter, not the speech of the third-party returning the ballot. Returning or requesting to
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return a voter’s AV ballot application on their behalf contains no inherently political expression by the third-party that would be protected by the First Amendment.
Here, the Harvesting Ban does not discriminate against any particular point of view. The solicitation ban applies equally to Plaintiffs and the MRP and RNC— despite their opposing political viewpoints. Intervenors are often adverse to Plaintiffs in the political process, and are among the entities directly regulated by the challenged provisions. Defendant confirms these statutes “are intended to protect voters from political parties, their candidates, and others, who would improperly seek to manipulate or influence their vote.” (ECF No. 46, PageID.870-71). And the “registered elector” requirement applies equally to all third-parties not meeting the familial relationship in § 759.
Therefore, strict scrutiny is not applicable as the Harvesting Ban restricts only the mechanisms of voting, value-neutral conduct that cannot be construed to convey any political viewpoint or expression.
b. If the First Amendment is applicable, then Plaintiffs’ speech and association claim fails under the Anderson-Burdick framework.
The Anderson-Burdick framework is tailored to the regulation of election mechanics. See Crawford, 553 U.S. at 190. The Sixth Circuit has applied the Anderson-Burdick framework in cases where it is alleged that a state election law burdens voting, from ballot-access laws, Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015), to early-voting regulations, Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012), to prohibitions on party-line voting. Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 662 (6th Cir. 2016). Sixth Circuit
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precedent dictates that district courts “evaluate First Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under the Anderson-Burdick framework.” Thompson v. DeWine, ___ F.3d ___; 2020 WL 2702483, *2 (6th Cir. 2020).4
This case is akin to Schmitt, 933 F.3d 628, which rejected First Amendment exacting scrutiny in applying the Anderson-Burdick framework. 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 the AndersonBurdick framework, 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 ballot applications, if anything, has only a “second-order effect on protected speech.”
The Anderson-Burdick framework is a balancing test. First, the court first must consider the character and magnitude of the asserted injury to the rights protected by the Constitution that the plaintiffs seeks to vindicate. Ohio Dem. Party,
4 The Sixth Circuit has seen a recent split on applying the Anderson-Burdick framework in election law cases. See, e.g., Moncier v. Haslam, 570 F. App’x 553, 559 (6th Cir. 2014) (declining to apply Anderson-Burdick to a challenge to state judicial qualifications law as the framework does not “mandate[] that states organize their governments in a particular manner”); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344–45 (1995) (declining to apply Anderson-Burdick where “we are not faced with an ordinary election restriction”); Schmitt, 933 F.3d 628, 644 (6th Cir. 2019) (Bush, J., concurring) (noting that “this circuit has generally limited the application of Anderson and Burdick to . . . laws that burden candidates from appearing on the ballot”); Daunt v. Benson, 956 F.3d 396, 422-23 (6th Cir. 2020) (Readler, J., concurring) (declining to apply Anderson-Burdick to challenges to Michigan’s new Independent Citizens Redistricting Commission).
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834 F.3d at 626-27. Second, it 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 make it necessary to burden the plaintiff’s rights. Id.
If a state imposes “severe restrictions” on a plaintiff’s constitutional rights, its regulations 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 of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016). Regulations falling somewhere in between—i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a “flexible” analysis, “weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Hargett, 767 F.3d at 546.
First, the Harvesting Ban, if anything, minimally burdens any alleged protected speech for a voter applying and returning his or her application. Plaintiffs bear a “heavy constitutional burden” to demonstrate that a state’s minimally burdensome law is unconstitutional. See Burdick, 504 U.S. at 434; Ohio Council, 814 F.3d 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 F.3d at 632.
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Section 759 provides numerous ways for Michigan voters to return their written requests or form applications to the local clerk: (1) in person, (2) by US mail or some other mail service, (3) email, (4) fax, (5) through in-person, mail, or other delivery by an immediate family member, 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 elector.” See MCL 168.759(4)-(6).
Further, since filing the present Motion, the Michigan Secretary of State announced her plan to send every registered voter an AV ballot application in Michigan before the August primary and General Elections. (Ex. 3, Benson, All voters receiving applications to vote by mail, https://www.michigan.gov/sos.html (accessed June 3, 2020)). The Secretary intends that every registered elector will receive an AV ballot application with instructions on how to apply, and a letter stating that the elector has a right to vote by mail in every election.
Because of these many avenues provided to a Michigan voter in returning his or her AV ballot application or written request, the Harvesting Ban is “minimally burdensome and nondiscriminatory,” which results in “a less-searching examination.” NEOCH v. Husted, 837 F.3d 612, 631 (6th Cir. 2016).
Plaintiffs remain free to engage in get-out-the-vote (GOTV) drives, persuade others to register to vote, distribute registration forms, and assist others in filling them out. Plaintiffs are also free to educate Michigan voters about voting absentee and the process for requesting absent voter ballot in the event the applications sent by the Secretary of State do not arrive, or even distribute AV ballot applications
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themselves. Such conduct is not prohibited under MCL 168.759. But Plaintiffs are prohibited from soliciting or requesting to return AV ballot applications, and returning AV ballot applications. This is a minimum burden on their overall voter outreach efforts. See Clingman v. Beaver, 544 U.S. 581, 593 (2005) (“To deem ordinary and widespread burdens . . . severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.”).5
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. As to a minimally burdensome regulation triggering rational-basis review, the Court accepts a justification’s sufficiency as a “legislative fact” and defers to the findings of Michigan’s legislature so long as its findings are reasonable. Ohio Dem. Party, 834 F.3d at 632. Defendant, or Intervenors, need not produce “evidence of actual instances of corruption.” Schickel v. Dilger, 925 F.3d 858, 870 (6th Cir. 2019).
The Michigan 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,
5 Plaintiffs argue that the Harvesting Ban is “particularly troublesome given the recent changes to absentee voting laws” after Proposal 3. (ECF No. 17, PageID 11011). This argument carries zero weight because the Michigan Legislature amended the Michigan Election Law, including MCL 168.759, after and specifically because of the passage of Proposal 3. See 2018 PA 603. Thus, the Legislature intentionally retained the Harvesting Ban restrictions despite increased absentee voting rights in the Michigan Constitution and Michigan Election Law, presumably to protect the absentee voting process.
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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 for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1, 17 (2007). These election provisions have been a part of Michigan’s Constitution for almost as long as Michigan has been a state. Id.6
The State has compelling interests in both preserving the integrity of its election and preventing fraud in the absent voting process. It is indisputable that states have a “compelling interest in preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S. 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.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008). And Crawford identified “fraudulent
6 The constitutional authority to prevent fraudulent voting was given to the Legislature in the 1850 Michigan Constitution. See Const. 1850, art. 7, § 6 (“Laws may be passed to preserve the purity of elections and guard against abuses of the elective franchise.”). The 1908 Constitution altered the language to express that the duty was obligatory, explicitly providing that “[l]aws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise . . . .” Const. 1908 art. 3, § 8. When the 1963 Constitution was ratified, the responsibility to pass laws preventing fraudulent voting was explicitly vested in the Legislature, and the Address to the People stated that “[t]he legislature is specifically directed to enact corrupt practices legislation.” 2 Official Record, Constitutional Convention 1961, p. 3366 (emphasis added). See In re Request for Advisory Opinion Regarding 2005 PA 71, 479 Mich. at 17 n. 33.
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voting” that was “perpetrated using absentee ballots.” 553 U.S. at 195-196; see also Veasey v. Abbott, 830 F.3d 216, 256 (5th Cir. 2016) (“The district court credited expert testimony showing mail-in ballot fraud is a significant threat—unlike inperson voter fraud.”).
The State’s regulatory interests are sufficient to justify these reasonable, nondiscriminatory restrictions. Unlike the restrictions struck down in Meyer and Buckley involving petition circulators, the challenged Michigan election laws do not directly reduce the number of voices by preventing out-of-state residents from advocating political or civic messages—only from harvesting voters’ AV ballot applications. Cf. Meyer, 486 U.S. at 422-23; Buckley, 525 U.S. at 194-95. In fact, Meyer recognized that the prospect of fraud during the electoral process—such as here—is far greater than in the initiative or candidate petition process. 486 U.S. at 427 (“the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting”).
The “registered elector” requirement is important to maintaining a credible possibility of prosecution for AV ballot application fraud. “Election law violations typically carry low penalties and are hard to prosecute against local violators. Requiring the state to authorize itinerant out-of-state [canvassers] could render enforcement ineffective.” Voting for Am., 732 F.3d at 395; Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001) (holding that “[t]he residency requirement allows North Dakota’s Secretary of State to protect the petition process from fraud and abuse by ensuring that circulators answer to the Secretary’s subpoena power”). Thus, the “registered elector” requirement subjects the deliverer to the
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State’s subpoena power, which acts as a deterrent from any foul-play and ensures that the voter’s application is properly delivered.
Michigan has an important interest in protecting the integrity of the AV Ballot process. These interests are not only legitimate, they are compelling. John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010) (“The State’s interest in preserving the integrity of the electoral process is undoubtedly important.”); Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008) (“[E]liminating election fraud is certainly a compelling state interest[.]”). Prohibiting unlimited AV ballot application harvesting is a commonsense means of preventing undue influence, voter fraud, application tampering, and voter intimidation. The Harvesting Ban preserves the integrity of absentee voting by increasing the likelihood that a voter will entrust her application with someone who is both familiarly trustworthy and legally accountable.
The State’s interest in protecting its elections against fraud is particularly acute in the context of absentee voting, including at the application stage. Numerous courts and commentators have recognized the legitimacy of states’ concerns about voter fraud—and especially in the context of absentee voting. See, e.g., 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, 385 F.3d at 1130-31 (“Voting fraud is a serious problem in U.S. elections generally . . . and it is facilitated by absentee voting.” (citing John C. Fortier & Norman J. Ornstein, Symposium: The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J.L. &
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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 manipulation when done by absentee ballot.”); see also Khan & Carson, Comprehensive Database of U.S. Voter Fraud Uncovers No Evidence That Photo ID Is Needed, https://votingrights.news21.com/article/election-fraud (accessed June 5, 2020) (study of election crimes from 2000–2012 finding that more fraud crimes involved absentee ballots than any other categories).
If any doubt remained that the Absent-Ballot Application Harvesting Ban is sensible, the ban on AV ballot application harvesting is consistent with the recommendations of the bipartisan Carter−Baker Commission. Specifically, the Commission Report states that “[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. 4, Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform, p. 46 (Sept. 2005) (emphasis added)). In short, the compelling rationale for prohibiting interested third-parties from harvesting absent ballots applies equally to harvesting voter’s applications for absent ballots consistent with the recommendations of the Carter−Baker Commission.
Despite Plaintiffs’ attempt to minimalize concerns, absentee voting invites some level of election fraud, including in the application process. In one recent example of alleged AV ballot application fraud, a Vanderburgh County (Ind.) Democratic Party activist was accused of illegally sending hundreds of absentee
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ballot applications with instructions leaving voters no option other than participating

in the June Democratic primary. (Ex. 5, Langhorne, Vanderburgh Democratic

activist

accused

of

hundreds

of

illegal

mailings,

https://www.courierpress.com/vanderburgh-democratic-activist-accused (accessed

June 5, 2020)).

In another recent example, a West Virginia mail carrier was charged with

attempted election fraud after eight electors submitting mail-in requests for absentee ballots had their party affiliations switched from Democrat to Republican. (Ex. 6, Raby, West Virginia Mail Carrier Charged With Altering Absentee Ballot Requests,

https://time.com/west-virginia-mail-carrier-fraud (accessed June 5, 2020)). That a

mail carrier, entrusted with handling our most important documents, may be tempted

to misuse absent ballot applications in the alleged commission of election fraud, is

significant evidence that the State has a compelling interest in limiting third-parties

without supervision from harvesting AV ballot applications, and that it is both

reasonable and appropriate for the State to do so. For these reasons, Plaintiffs’ First Amendment claims fail under the Anderson-Burdick framework.

c. The Harvesting Ban survives exacting scrutiny. Even if the Court concludes that the Harvesting Ban is subject to exacting scrutiny, the challenged law nevertheless passes constitutional muster. Exacting scrutiny “requires a ‘substantial relation’ between the [challenged law] and a ‘sufficiently important’ governmental interest.” Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (quoting Buckley, 525 U.S. at 64, 66). To withstand this scrutiny,

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“the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Reed, 561 U.S. at 196.
The Supreme Court’s ruling in John Doe No. 1 v. Reed, 561 U.S. 186 (2010) is instructive here. 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 who sign 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 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 v. Gonzalez, 549 U.S. 1, 4 (2006)).
As the Court has previously noted, Defendant here has identified Michigan’s interest in “preserv[ing] the integrity of absentee voting” and “preventing fraud” by “increasing the likelihood that a voter will entrust her application with someone who is trustworthy and accountable.” (ECF No. 59, PageID. 997-98). 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 application only for the bad actor to destroy or fail to deliver the AV ballot application. Reed, 561 U.S. at 198.
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So even if the Court applies exacting scrutiny, the Harvesting Ban passes constitutional muster. As detailed above, the application law has a significantly important interest of “preserving the integrity of the electoral process by combating fraud,” Id. at 197, in absentee voting, including the application process. For all these reasons, the Harvesting Ban is constitutional and not preempted by federal law.
2. The solicitation ban is not vague. Plaintiffs allege that the Harvesting Ban on strangers “solicit[ing] or request[ing] to return” AV ballot applications is void for vagueness because the term “solicitation” is not defined under Michigan Election Law. This Court declined to address whether there is an appropriate limiting construction of the solicitation ban in the context of Defendant’s motion to dismiss. (ECF No. 59, PageID.996). Federal courts must construe challenged state statutes, whenever possible, “to avoid constitutional difficulty.” Green Party of Tenn. v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012). The Sixth Circuit has stated 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. The purpose of the vagueness doctrine is to ensure that both those who enforce a statute and those who must comply with it “know what is prohibited.” Id. (quoting Grayned v. Rockford, 408 U.S. 104, 108 (1972)). It is not “to convert into a constitutional dilemma the practical difficulties” of crafting a law that is “general enough to take into account a variety of human conduct” yet specific enough “to provide fair warning,” Colten v. Kentucky, 407 U.S. 104, 110 (1972). Moreover, federal courts must construe challenged state statutes,
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whenever possible, so as “to avoid constitutional difficulty.” Davet v. Cleveland, 456 F.3d 549, 554 (6th Cir. 2006).
To succeed on a void-for-vagueness challenge, Plaintiffs must show either that the challenged provisions (1) “fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) “authorize or even encourage arbitrary and discriminatory enforcement.” Platt v. Bd. of Com’rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235, 246 (6th Cir. 2018). Criminal statutes violate the due process clause if they are “too vague to give ordinary people fair notice of the criminalized conduct or so standardless as to invite arbitrary enforcement.” United States v. Parrish, 942 F.3d 289, 295 (6th Cir. 2019) (internal quotations omitted).
The plain language of MCL 168.759(4), (5) plainly prohibits a person from “solicit[ing]” or “request[ing] to return” an AV ballot application. The solicitation ban must be read in context with the Harvesting Ban as a whole. “It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007).
The terms “solicit” and “request” are not ambiguous or vague, but are readily understood using their ordinary and common meaning. 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, No. 15-1446, 2016
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WL 4394135, at *16 (S.D. Ohio Aug. 18, 2016) (quoting Webster’s Third New International Dictionary, Unabridged (2016)). Thus, the plain language of the Harvesting Ban prohibits a stranger from “approaching” an elector “with a request to return” his or her AV ballot application.
“When the common meaning of a word provides adequate notice of the prohibited conduct, the statute’s failure to define the term will not render the statute void for vagueness.” United States v. Hollern, 366 F. App’x 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 a reasonable person can understand its meaning.” Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411 F.3d 777, 798 (6th Cir. 2005) (en banc). The term “solicit” is commonly used in various substantive areas ranging from criminal law to employment law without issue.
Plaintiffs assert various hypotheticals in its attempt to show vagueness. A rule is not unconstitutionally vague because a plaintiff presents a tough hypothetical. See Grayned, 408 U.S. at 112 n. 15 (“It will always be true that the fertile legal imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice question.” “Close cases can be imagined under virtually any statute.” United States v. Williams, 553 U.S. 285, 306 (2008). Just as in Platt, “[s]pecific facts matter,” and it would be irresponsible of Defendant to respond definitively. See 894 F.3d at 248. “[S]ome degree of ambiguity is unavoidable in statutory drafting, and even a well-drafted statute may be ‘susceptible to clever hypotheticals testing its reach.’ ” Hargett, 400 F. Supp. 3d at 727 (quoting Platt, 894
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F.3d at 251). Defendant need not bat away endless hypotheticals that counsel for Plaintiffs may throw to survive a vagueness challenge.
In the alternative, the Court may abstain from addressing Plaintiffs’ constitutional challenges on unsettled Michigan election laws under the Pullman doctrine.7 The Court correctly states, in the interests of federalism, a federal court in evaluating a facial challenge to a state law “must, of course, consider any limiting construction that a state court or enforcement agency has proffered.” (ECF No. 59, PageID. 996 (citing Grayned, 408 U.S. at 110)). Michigan courts have never interpreted the challenged Michigan election laws, and thus these interpretive questions remain unsettled state law.
Pullman’s abstention doctrine provides that a federal court may abstain so that state courts will have an opportunity to settle an underlying state law question whose resolution may avert the need to reach a federal constitutional question. See Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). “[W]hen a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state law question and thus avoid the possibility of unnecessarily deciding a constitutional question.” Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 739 (6th Cir. 2000). Pullman abstention is appropriate “when state law is unclear and a clarification of that law would preclude the need to
7 Intervenors have raised the Pullman abstention argument in its Answer (ECF No. 61, PageID.1033), Affirmative Defenses (Id. at PageID.1047), and Reply Brief in Support of Motion to Intervene (ECF No. 46, PageID.869).
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adjudicate the federal question.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). The Court thus may alternatively abstain from deciding these issues of first impression of Michigan election law, and certify questions for the Michigan Supreme Court to provide a limiting construction of the challenged laws. See Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997); MCR 7.308(A)(2).8
3. Plaintiffs have not established a likelihood of success on their Voting Rights Act claim.
Plaintiffs allege that the registration requirement of the Harvesting Ban conflicts with and thus is preempted by § 208 of the Voting Rights Act (VRA), 52 U.S.C. § 10508. Conflict preemption refers to circumstances “where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Wimbush v. Wyeth, 619 F.3d 632, 643 (6th Cir. 2010).
Section 208 has limited application. It provides in full: “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. § 10508 (emphasis added).
8 In recognizing that Pullman may apply, the Western District of Michigan set for hearing to consider whether issues of statutory interpretation of the Governor’s emergency powers under Michigan law should be certified to the Michigan Supreme Court. (Ex. 7, Midwest Inst. of Health, PLLC v. Whitmer, No. 20-414 (W.D. Mich., May 28, 2020) (ECF No. 23)). This issue remains pending.
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Plaintiffs’ VRA preemption claim does not warrant the extraordinary relief Plaintiffs seek. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) (recognizing that preemption is disfavored in areas traditionally regulated by the state). In passing § 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) (emphasis added) [hereinafter, “Senate Report”]. Plaintiffs, however, have not presented facts sufficient to show that § 208 preempts the Harvesting Ban. Indeed, Plaintiffs have not presented evidence of any identified Michigan voters covered under § 208 who have been unable to vote or to use their assistants of choice because of the registration requirement.
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 F.3d 604 (5th Cir. 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 F.3d at 615. Similarly, in United States v. Berks Cnty., 250 F. Supp. 2d 525, 530 (E.D. Pa. 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 registration requirement imposes any burden whatsoever on the rights of voters covered under § 208 of the VRA.
Furthermore, it is not clear that the Absent Ballot Harvesting Ban conflicts with § 208 protections for covered voters. The VRA defines “voting” in pertinent as
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“all action necessary to make a vote effective in any primary, special, or general election.” 52 U.S.C. § 10310(c)(1) (emphasis added). This definition encompasses a broad range of activities that precede, include, and follow the physical act of reading, marking, and casting a ballot. See OCA-Greater Houston, 867 F.3d at 615. But § 208’s legislative history focuses on election day assistance and in-person voting—not absent ballot voting. See, e.g., 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 booth.”). Absentee voting would not seem “necessary to make a vote effective” under the VRA, since there is no broad constitutional or federal statutory right to vote by absent ballot, which is a merely a legislative “indulgence—not a constitutional imperative.” Crawford, 553 U.S. at 209 (Scalia, J., concurring); see also McDonald, 394 U.S. at 807-08.
B. The Paid Driver Ban is constitutional and not preempted by federal law. 1. The Paid Driver Ban does not unconstitutionally infringe on First Amendment rights. Plaintiffs allege that the Paid Driver Ban violates their First and Fourteenth
Amendment right to engage in political expression, specifically (1) limiting political spending on transporting voters to the polls, and (2) regulates rides-to-the-polls efforts. (ECF No. 17, PageID 122).
The Paid Driver Ban does not unconstitutionally infringe on First Amendment speech as the payment for transporting voters to the polls is not “inherently expressive,” and thus not speech protected by the First Amendment. See Rumsfeld, 547 U.S. at 66. Plaintiffs fail to cite any case law recognizing that paying for
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transportation for voters to the polls in itself is protected speech under the First Amendment. Similar to their arguments above, Plaintiffs attempt to seek cover under a general umbrella of GOTV efforts. But the Supreme Court has long held that nonexpressive conduct does not acquire First Amendment protection whenever combined with protected speech. See Clark, 468 U.S. at 297-98; Rumsfeld, 547 U.S. at 66; O’Brien, 391 U.S. at 376.
Plaintiffs again try erroneously to analogize the Paid Driver Ban to Meyer and Buckley, arguing that exacting scrutiny applies. (ECF No. 17, ¶ 84). Meyer held that a prohibition on paid circulators triggered exacting scrutiny because circulators are engaged in core political speech. 486 U.S. at 425, 428. Transporting voters to the polls, in contrast, involves no political communication of any sort by either the driver or the person subsidizing it.
The Paid Driver Ban targets only conduct—payment of money for transporting voters to the polls. This law does not prohibit any political speech or association whatsoever. As discussed in more detail below, the plain language of the Paid Driver Ban does not even prohibit organizations or individuals from providing transportation for voters to polls. Rather, it regulates commercial activity without prohibiting anyone from transporting voters for free. Thus, for the same reasons outlined above with respect to the Harvesting Ban, it does not directly impinge upon Plaintiffs’ First Amendment rights, and should be subject only to a reasonableness analysis under Anderson-Burdick.
Plaintiffs argue that the Paid Driver Ban prohibits people from subsidizing voter registration efforts. (ECF No. 17, PageID.104-03). The Amended Complaint
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points out that the Paid Driver Ban prohibits anyone from paying to have voters transported “to an election.” (Id.). In Michigan, people can now register to vote at the polling place. Plaintiffs reason that the statute prohibits plaintiffs from “spending money to register voters.” (Id.). To the contrary, organizations like Plaintiffs may still conduct voter registration drives, bring voter registration forms to voters, transport voters to most voter registration sites or even to election officials’ offices. Michigan also allows for online voter registration; Plaintiffs may also spend money to facilitate such efforts, as well. The fact that voter registration happens to now be permitted at polling places does not somehow transform the Paid Driver Ban into a prohibition on paid voter registration efforts.
Further, the fact that other Michigan statutes prohibit vote buying does not mean that the Paid Driver Ban somehow lacks a rational basis. To the contrary, the Paid Driver Ban “helps prevent certain types of . . . fraud otherwise difficult to detect” that other prophylactic measures may not prevent, such as bad actors pressuring or extorting a promise to vote a certain way from vulnerable voters. Reed, 561 U.S. at 198. Thus, for the same reasons outlined above with respect to the Harvesting Ban, the Paid Drive Ban should survive either rational basis review under Anderson-Burdick, or exacting scrutiny under the First Amendment.
2. Paid Driver Ban is not unconstitutionally vague and overbroad. Plaintiffs allege that the phrase “hire a motor vehicle” or cause a motor vehicle to be hired in the Paid Driver Ban is vague and overbroad. (ECF No. 22-1, PageID.183-84). It bears repeating that “every reasonable construction must be
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resorted to, in order to save a statute from unconstitutionality.” Nat’l Fed. Of Indep. Bus., 567 U.S. at 563. And “federal courts must construe challenged state statutes, whenever possible, so as “to avoid constitutional difficulty.” Green Party of Tenn., 700 F.3d at 825. Like their arguments regarding the “solicitation ban” under MCL 168.759, Plaintiffs’ similarly fail because the Paid Driver Ban can be given a limited construction that does not violate First Amendment rights.
A review of the statutory history of the Michigan Election Law provides guidance on the limited scope of the Paid Driver Ban. This statute was originally enacted by 1895 P.A. 135, which provided:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any primary conducted hereunder, or who shall solicit any person to cast an unlawful vote at any primary, or who shall offer to any voter any money or reward of any kind, or shall treat any voter or furnish any entertainment for the purpose of securing such voter’s vote, support, or attendance at such primary or convention, or shall cause the same to be done, shall be deemed guilty of a misdemeanor. [Emphasis added.]
By 1929, the “for the purpose of” language in the provision had been divided along with the other described illegal acts and placed elsewhere in the law. See C.L. 1929, § 3298.9 The Paid Driver Ban was finally amended to its current version, which provides in full: “A person shall not hire a motor vehicle or other conveyance
9 C.L. 1929, § 3298 provided: “Any person who shall hire any carriage or other conveyance, or cause the same to be done, for conveying voters, other than voters physically unable to walk thereto, to any election or primary election conducted hereunder shall be deemed guilty of a misdemeanor.”
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or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election.” MCL 168.931(1)(f) (emphasis added).
The statutory language of words of the Paid Driver Ban, specifically the prohibition on “hir[ing] a motor vehicle,” are understandable by a person of ordinary intelligence according to the common meaning of the words. The verb “hire” is defined as “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 of Am., 2008 WL 2357643, at *3 (Mich. App. 2008) (quoting Random House Webster’s College Dictionary (1997)).10 In either definition, the critical factor is the exchange of services or use for a fee.
Also, subsection (1)(f) prohibits hiring vehicles or conveyances “for voters,” which necessarily contemplates acting on behalf of others, not oneself. And the statutory history of the Paid Driver Ban demonstrates that the statute addresses hiring such services “for the purpose” of influencing voters. “Unlike legislative history, statutory history—the narrative of the ‘statutes repealed or amended by the statute under consideration’—properly ‘form[s] part of the context of the statute . . . .’” People v. Pinkney, 501 Mich. 259, 276 n. 41 (2018) (quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 256). Therefore, the plain language of the Paid Driver Ban prohibits the exchange of money for transportation of voters to the polls for the purpose of influencing voters.
10 The legal definition of “hire” is consistent: “[t]o engage the labor or services of another for wages or other payment” or “[t]o procure the temporary use of property, usu. at a set price.” Black’s Law Dictionary (11th ed. 2019).
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Plaintiffs’ hypotheticals attempt to obfuscate a reasonable reading of the Paid Driver Ban. With the exception of an article stating that Uber would not provide a promotion to Michigan voters in the 2018 Election, (ECF No. 17, PageID.105), which could have been made for countless business reasons, Plaintiffs have failed to produce any evidence demonstrating that their ability to provide transportation to the polls has been impeded. Moreover, it is not clear why the advancement in technology has any bearing with construing the Paid Driver Ban within the constitutional bounds.
Even if an application of the Paid Driver Ban could be construed to impinge on protected speech, the statute would still be constitutional so long as the Court could limit the construction of the statute to only the conduct that is clearly included. The Paid Driver can be read to narrowly capture only quid pro quo activities; that is, to ban payment or expenditures for rides to the polls in exchange for a vote on an issue or for a specific candidate.
3. FECA does not preempt Paid Driver Ban. Plaintiffs allege the Federal Election Campaign Act (FECA) and FEC regulations either expressly or impliedly preempt Paid Driver Ban. “Express preemption exists where either a federal statute or regulation contains explicit language indicating that a specific type of state law is preempted.” State Farm Bank v. Reardon, 539 F.3d 336, 341-42 (6th Cir. 2008). Conflict preemption refers to circumstances “where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the
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accomplishment and execution of the full purposes and objectives of Congress.” Wimbush, 619 F.3d at 643. When analyzing conflict preemption, the court “should be narrow and precise, ‘to prevent the diminution of the role Congress reserved to the States while at the same time preserving the federal role.’ ” Downhour v. Somani, 85 F.3d 261, 266 (6th Cir. 1996). The Supreme Court has described impossibility preemption as a “demanding defense.” Wyeth v. Levine, 555 U.S. 555, 573 (2009). Plaintiffs’ FECA preemption theory fails for many reasons.
a. Plaintiffs have failed to allege a cause of action for its FECA preemption theory.
As a threshold matter, Plaintiffs stated that their “claims alleging vagueness and overbreadth (Counts I and V), First and Fourteenth Amendment violations of speech and associational rights (Counts II and VI), and preemption (Counts IV and VIII) all rely on Plaintiffs’ own rights and injuries as organizations.” (ECF No. 40, PageID. 754-55). This is a mischaracterization of Plaintiffs’ alleged causes of action.
The Amended Complaint provides one cause of action, 42 U.S.C. § 1983. (ECF No. 17). Preemption alone is not a cause of action. See Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 325 (2015) (“It is . . . apparent that the Supremacy Clause is not the ‘source of any federal rights’ and certainly does not create a cause of action.”). Plaintiffs must point to a separate cause of action for their preemption counts.
Because Plaintiffs have chosen to proceed with § 1983 as their cause of action, they must identify some federal right that would be infringed by Defendant acting under color of state law. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002).
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FECA and the regulations cited by Plaintiffs do not create or guarantee any rights under federal law, but rather restrict political conduct which would be protected, if at all, by the First and Fourteenth Amendments. Accordingly, because FECA and the cited regulations do not secure Plaintiffs’ “rights, privileges, or immunities,” FECA cannot provide the basis for Plaintiffs’ § 1983 action. Without a separate cause of action, Plaintiffs’ FECA preemption theory fails for that reason alone.
b. This Court is not a proper venue for adjudication of Plaintiffs’ FECA preemption claim.
Plaintiffs request equitable relief, and presumably seek to proceed in equity under the doctrine established in Ex Parte Young, 209 U.S. 123 (1908). Federal courts, however, cannot entertain suits brought in equity on the basis that a state law has been preempted by Congress when there is an “express [or] implied statutory limitation[]” on the ability of the court to hear that case. Armstrong, 575 U.S. at 327 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996)). In other words, “‘[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.’” Id. at 327-28 (quoting INS v. Pangilinan, 486 U.S. 875, 883 (1988)). Courts may determine that Congress has evinced an “intent to foreclose equitable relief” when the allegedly pre-empting statute contains “the express provision of one method of enforcing [the] substantive rule” created by the statute. Id. at 328.
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FECA vests enforcement power with the Federal Election Commission (FEC). 52 U.S.C. § 30106(b). It further requires any person to file an administrative complaint with the FEC alleging a violation of the statute. 52 U.S.C. § 30109(a)(1); 11 C.F.R. § 111.4. A private party may only proceed to court, exclusively the D.C. District Court, after the FEC has completed its investigation and determined to dismiss the complaint, and the complainant may only do so to seek review of the dismissal. 52 U.S.C. § 30109(a)(8)(A). The complainant’s recourse to the courts is essentially limited to an action for review of the FEC’s action or inaction. Jurisdiction in this Court is therefore improper on Plaintiffs’ FECA challenge.
c. Courts have narrowly interpreted the FECA preemption clause, which does not preempt the Paid Driver Ban.
FECA provides a uniform national regulation of political spending in federal elections. (ECF No. 59, PageID.1010). This act generally “imposes limits and restrictions on contributions; provides for the formation and registration of political committees; and mandates reporting and disclosure of receipts and disbursements made by such committees.” Bunning v. Kentucky, 42 F.3d 1008, 1011 (6th Cir. 1994). “When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority,” Malone v. White Motor Corp., 435 U.S. 497, 505 (1978), “there is no need to infer congressional intent to pre-empt state laws from the substantive provisions” of the legislation. Cal. Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987). Such reasoning is a variant of the familiar principle of
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expressio unius est exclusio alterius: Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted. “Under the expressio unius principle, when a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” Millsaps v. Thompson, 259 F.3d 535, 546-47 (6th Cir. 2001).
As to their argument that FECA preempts the Paid Driver Ban, Plaintiffs rely on the FECA preemption clause, which states: “the provisions of this Act, and the rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to federal office.” 52 U.S.C. § 453. While § 453 at first glance appears to have an exceedingly broad scope, courts have not interpreted the clause in that manner. A “strong presumption” exists against FECA preemption. Karl Rove & Co. v. Thornburg, 39 F.3d 1273, 1280 (5th Cir. 1994) (quoting Stern v. General Elec. Co., 924 F.2d 472, 475 n. 3 (2d Cir. 1991). In addition, “courts have given [§] 453 a narrow preemptive effect in light of its legislative history.” Id.
Further, Congress did not intend criminal sanctions under FECA to substitute for all other possible criminal sanctions, including under state law. See Dewald v. Wriggelsworth, 748 F.3d 295, 298 (6th Cir. 2014) (ruling that FECA not preempting Michigan election fraud convictions was a reasonable application of clearly established law). Plaintiffs have failed to cite any caselaw stating that FECA preempts state criminal laws targeting election fraud, such as the Paid Driver Ban.
Section 453 further incorporates by reference “rules prescribed under” FECA. Plaintiffs selectively quote the FEC preemption regulation, arguing that the Paid Driver Ban is a “[l]imitation on contributions and expenditures” regarding federal
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elections. 11 C.F.R. § 108.7(b)(3). This regulation continues stating that FECA does not supersede state laws for the “[p]rohibition of false registration, voting fraud, theft of ballots, and similar offenses[.]” Id. at § 108.7(c)(4) (emphasis added). The Paid Driver Ban has long preserved the integrity of Michigan’s elections, specifically to protect voters against undue influence and to prevent quid pro quo arrangements when money is exchanged. Although the Paid Driver Ban does not criminalize traditional voter fraud, the provision protects against fraudulent behavior involving voters or similar offenses in Michigan elections. Thus, the Paid Driver Ban is expressly not preempted by the FEC preemption regulation.
The Sixth Circuit has accepted the narrow reading of FECA’s preemption provision. In Dewald, the court held that FECA not preempting Michigan criminal fraud law was a reasonable application of clearly established law. 748 F.3d at 303. The facts involved a habeas petitioner seeking to overturn his fraud convictions for unlawfully diverting campaign contributions through PACs. The Michigan Court of Appeals upheld the convictions, rejecting that FECA preempts his state-law charges. Id. at 298; People v. Dewald, 267 Mich. App. 365, 375 (2005). On habeas review, the district court found preemption based on inapplicable preemption cases. Id. at 299-300.
The Sixth Circuit reversed. The court rejected the lower court’s reliance on preemption cases that never addressed FECA preemption. “[N]o Supreme Court case had held that FECA preempts state-law fraud claims, let alone interpreted the key statutory provisions at issue.” Id. at 300.
The court seemingly adopted the state appellate court’s narrow interpretation
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of the FECA preemption clause. “The Michigan Court of Appeals’ observation that courts have given [§] 453 a narrow preemptive effect in light of its legislative history is a reasonable one.” Id. at 302. “An ambiguous statute is fertile ground from which fair-minded disagreements grow, and we find that the Michigan Court of Appeals’ narrow construction of the FECA’s preemption provision” is reasonable. Id.
The court further relied on the FEC preemption regulation listing state activities and laws not preempted by FECA, specifically “[p]rohibition of false registration, voting fraud, theft of ballots, and similar offenses.” Id. at 302 (emphasis in original). Although the case did not address “voting fraud in the traditional sense of someone casting a ballot under false pretenses[,]” it involved “the fraudulent acquisition of money by an individual purporting to represent a federally registered PAC.” Id. at 302. Thus, Sixth Circuit precedent follows that the FECA preemption clause has a narrow interpretation, and that state criminal laws directed at preventing election fraud are not preempted under FECA.11
d. The plain text of the FEC regulations cited by Plaintiffs do not preempt the Paid Driver Ban.
Plaintiffs rely on 11 C.F.R. § 114.4(d)(1) and 114.3(c)(4)(i), which are not
11 In Krikorian v. Ohio Elections Com’n, No. 10-103, 2010 WL 4117556 (S.D. Ohio, Oct. 19, 2010), the plaintiff argued that FECA preempted the state statute to the extent it regulates a federal election. After analyzing caselaw narrowly interpreting FECA preemption, the court held that the federal preemption claim is not facially conclusive to avoid Younger abstention. Id. at *10; 12. The court distinguished Bunning, 42 F.3d at 1012, which preempted a Kentucky campaign finance statute and prevented the Registry of Election Finance from investigating polling expenditures made by a federal PAC. Bunning was distinguishable because it involved “state law related to campaign financing—an area in which FECA has often been found to preempt state law.” Id. at *11.
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empowering regulations—they do not give a party any affirmative rights. These regulations are merely exceptions to FECA’s broad prohibitions against corporations and labor unions making campaign contributions, expenditures, and electioneering communications. The FEC regulations must be read in context with FECA as a whole. “The language of a regulation must necessarily be interpreted in the context of its statutory origin.” Armstrong v. U.S. Fire Ins. Co., 606 F. Supp. 2d 794, 820 (E.D. Tenn. 2009).
The plain language of these regulations do not conflict with the Paid Driver Ban because they allow corporations and labor unions to provide transportation; whereas, the Paid Driver Ban expressly prohibits payment for transportation. As stated, the Paid Driver Ban protects voters against undue influence and prevents quid pro quo arrangements when money is exchanged. Nothing prohibits Plaintiffs from providing transportation for the General Election. Thus, even when read in isolation, Plaintiffs’ cited FEC regulations are still not conflicting with the Paid Driver Ban.
*** In short, Plaintiffs have failed to demonstrate a likelihood of success on the merits of their claims in the Amended Complaint. The Sixth Circuit has stated that “a finding that there is simply no likelihood of success on the merits is usually fatal” to a request for injunctive relief. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). The Court may end its analysis here, and deny Plaintiffs’ request for an injunction.
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II. Plaintiffs Cannot Establish That They Will Suffer Irreparable Harm Without the Injunction. Plaintiffs have failed to establish any irreparable harm necessary for
injunctive relief. 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 a particular outcome or harm is possible or certain, but whether “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an 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 (1997). A preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. Los Angeles v. Lyons, 461 U.S. 95 (1983).
“As a matter of equitable discretion, a preliminary injunction does not follow as a matter of course from a plaintiff’s showing of a likelihood of success on the merits.” Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018).
“[T]he purpose of the preliminary injunction is simply to prevent irreparable harm during the period before a jury trial can be held to decide the merits.” 11A Fed. Prac. & Proc. Civ. § 2950 (3d ed.). Plaintiffs cannot adequately show irreparable harm when the challenged election laws have been on the books for many years and set forth the competitive electoral environment.
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Granting Plaintiffs’ preliminary injunction would work needlessly “chaotic and disruptive effect upon the electoral process,” Fishman v. Schaffer, 429 U.S. 1325, 1330 (1976), and because the “purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Preservation of the status quo means enforcement of the challenged Michigan election laws that have controlled election cycles in Michigan for many years.
Plaintiffs further cannot show irreparable harm in allegedly “educat[ing] voters about their options to vote absentee” or “encourage[ing] voters to take advantage of the conveniences of absentee voting” (ECF No. 22-1, 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. (Ex. 3).
Moreover, to the extent Plaintiffs argue that they have been injured based on their “diversion of resources” and thus have standing, these injuries would be quantifiable through ordinary discovery process. The “general rule is that a plaintiff’s harm is not irreparable if it is fully compensable by money damages.” Nat’l Viatical, Inc. v. Universal Settlements Intern., Inc., 716 F.3d 952, 957 (6th Cir. 2013). Therefore, Plaintiffs have failed to establish any irreparable harm necessary for injunctive relief. III. The Balance of Harms Weighs Heavily Against Plaintiffs Because Their
Requested Relief is Inappropriate as a Matter of Law and Because it Would Harm the Public Interest.
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The balance of harms further militates against granting Plaintiffs the extraordinary relief of an injunction on any of their facial challenges. “Simply put, federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Esshaki v. Whitmer, No. 20-1336; 2020 WL 2185553, *2 (6th Cir. May 5, 2020). And it is well-established that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Courts can only “provide relief to claimants . . . who have suffered, or will imminently suffer, actual harm.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
Unless the statute is unconstitutional, enjoining a “State from conducting [its] elections pursuant to a statute enacted by the Legislature . . . would seriously and irreparably harm [the State].” Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). Giving effect to the will of the people by enforcing the laws they and their representatives enact serves the public interest. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006).
The Harvesting Ban and Paid Driver Ban are long-standing Michigan election laws. Plaintiffs admit they have known of these laws, as they have been active in Michigan in several election cycles and claim that the challenged election laws have caused them to adjust their behavior in prior election cycles. (ECF No. 22-1, PageID 153-54). Yet Plaintiffs never sought to remedy their perceived concerns with the challenged election laws until now. Plaintiffs further do not identify a single voter who has been unable to apply for an absent ballot due to the Harvesting Ban or unable to secure transportation to the polls due to the Paid Driver Ban.
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Plaintiffs’ requested relief would harm the public interest in Michigan. The State has a compelling public interest in preserving the integrity of its election processes. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989); cf. also Crawford, 553 U.S. at 194-97. “[C]aution” granting injunctions is “especially” warranted “in cases affecting a public interest where the court is asked to interfere with or suspend the operation of important public works or to control the action of another department or government.” Country Club v. Jefferson Metropolitan, 5 Ohio App.3d 77, 80 (7th Dist. 1981). Such significant impact cuts against the interest of Michigan, and the public, in orderly elections. See Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018).
Further, if the Court were to grant Plaintiffs’ request for an injunction, there would be no restrictions on harvesting AV ballot applications leading up to the General Election, when states are expected to see increases in absentee voting due to COVID-19.
Michigan’s public interest would not be served in allowing out-of-state individuals to solicit, harvest, and return AV ballot applications. Nor would the public interest be served by paid drivers transporting voters to the poll booths with even an implication of quid-pro-quo.
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CONCLUSION

In sum, Intervenors Michigan Republican Party and Republican National

Committee respectfully request that the Court deny Plaintiffs’ motion for

preliminary and permanent injunction.

Respectfully submitted, BUTZEL LONG, PC

DATED: June 5, 2020

By: /s/ Kurtis T. Wilder Kurtis T. Wilder (P37017) Steven R. Eatherly (P81180) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com eatherly@butzel.com

CERTIFICATE OF SERVICE
I hereby certify that on June 5, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
By: /s/ Kurtis T. Wilder Kurtis T. Wilder (P37017) 150 W. Jefferson, Suite 150 Detroit, Michigan 48226 (313) 225-7000 wilder@butzel.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and
Michigan Republican Party And Republican National Committee,
Intervening Parties,

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE R. STEVEN WHALEN
INTERVENORS MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION

and

Michigan House of Representatives, And Michigan Senate,

Intervening Parties. _______________________________________________________________/

INTERVENORS MICHIGAN REPUBLICAN PARTY AND REPUBLICAN NATIONAL COMMITTEE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY AND
PERMANENT INJUNCTION INDEX OF EXHIBITS

Exhibit 1

Portnoy, Voting problems in D.C., Maryland lead to calls for top officials to resign, https://www.washingtonpost.com/local/dcpolitics/voting-problems-in-dc-maryland-lead-to-calls-for-topofficials-to-resign/2020/06/03/24b47220-a5a8-11ea-b6193f9133bbb482_story.html

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Exhibit 2 Chapter 6, Michigan’s Absentee Voting Process, February 2019, p. 2 (Excerpt only PDF pages 1-5)

Exhibit 3 Benson, All voters receiving applications to vote by mail, https://www.michigan.gov/sos/0,4670,7-127-93094-529536--,00.html

Exhibit 4 Carter-Baker Federal Election Reform, p. 46 (Sept. 2005) (Excerpt only PDF pages 1; 54-55)

Exhibit 5

Langhorne, Vanderburgh Democratic activist accused of hundreds of illegal mailings, https://www.courierpress.com/story/news/2020/05/18/vanderburghdemocratic-activist-accused-hundreds-illegal-mailings/5215294002/

Exhibit 6 Raby, West Virginia Mail Carrier Charged With Altering Absentee Ballot Requests, https://time.com/5843088/west-virginia-mail-carrierfraud-absentee-ballots/

Exhibit 7 Midwest Inst. of Health, PLLC v. Whitmer, No. 20-414, May 28, 2020 (ECF No. 23)

2

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Exhibit 1

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The Washington Post
D.C. Politics
Voting problems in D.C., Maryland lead to calls for top officials to resign
By Julie Zauzmer , Jenna Portnoy and Erin Cox June 3 The primary elections held Tuesday in Maryland and the District were a test of a mostly vote-by-mail election, a prospect that much of the country could face in the high-stakes November general election if the coronavirus pandemic continues to disrupt in-person gatherings.
On Wednesday, local leaders declared that the two jurisdictions failed that test.
They called for top elections officials to resign after botched delivery of absentee ballots and hours-long waits at polling places left some voters disenfranchised.
D.C. Council member Charles Allen (D-Ward 6) announced June 19 hearings on what went wrong, and Maryland Gov. Larry Hogan (R) called it “completely unacceptable” that some voters didn’t get ballots and called for hearings in the General Assembly.
Maryland Lt. Gov. Boyd K. Rutherford (R) and Comptroller Peter K. Franchot (D) said Linda H. Lamone, director of the State Board of Elections, should relinquish her post. D.C. Council member Elissa Silverman (I-At Large) said D.C. Board of Elections Chair Michael Bennett should resign, as well.
“A full investigation is needed given voters were likely disenfranchised due to this screw-up. Unacceptable,” tweeted Silverman, who said she received about 500 emails Monday and Tuesday from voters who had requested absentee ballots but did not receive them.
D.C. Council Chairman Phil Mendelson (D) promised to prioritize an inquiry. “It’s important we have a full airing of what happened,” he said. “Voters shouldn’t have to wait an hour, and I understand in some places it was five hours.”
Lamone, who was appointed by the State Board of Elections and confirmed by the Maryland Senate, has held the job since 1997. She did not respond to an email seeking comment.
“I think it’s time for new leadership there, and to be done early, with enough time to correct all of these issues before the November election,” Rutherford said. “I call on the Senate to work with us to find new leadership, and I encourage the administrator to step down.”
Franchot said Armstead B.C. Jones Sr., director of the Baltimore City Board of Elections, should be removed, as well. “Our city, state and country are already facing far too many existential challenges without corroded public confidence in the integrity of our democratic process,” he said.
Jones did not return a call to his office.
Bennett, who said he does not plan to resign, said, “We’re going to be doing ‘lessons learned’ and figuring out how best to go forward.” He and others acknowledged that they will need new technology and new strategies to avoid the same problems in the fall.
D.C. Mayor Muriel E. Bowser (D) called the long lines Tuesday night “nothing more than failed execution.”
“I am very concerned about it,” Bowser said. “I can assure D.C. voters we will have the appropriate action plan from the board. . . . I could not tolerate continued failed leadership or execution.”
Maryland had said it would send mail-in ballots to every registered voter in the state ahead of the primary, a measure meant to prevent the spread of the virus by limiting the number of people who voted in person.
But at least 1 million ballots were delayed.

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In the District, the Board of Elections urged all residents to vote by mail and opened just 20 polling places instead of the usual 143. The elections office struggled to fulfill more than 92,000 requests for mail-in ballots, instead of the 6,000 or so it receives in most elections.
Then, thousands of people turned out to vote in person Tuesday. Poll workers were cleaning equipment between voters and limiting the number allowed inside at once. As a result, long lines remained at many polling places well after voting was supposed to end at 8 p.m.
Some voters gave up. Many waited hours — in some cases past midnight.
District resident Patricia Wertman, 75, said she requested her ballot and got a confirmation of her request May 5. When she hadn’t received her ballot by May 30, she got in touch with the Board of Elections; she said that a staff member told her to vote in person.
“Not possible,” she wrote in an email. She lives in an assistedliving facility, where she has been under a strict quarantine since March.
Wertman said that she has had a near-perfect voting record for more than half a century and that she spent most of her career working for the Congressional Research Service. “I consider it a moral & civic duty to vote. I was/am infuriated by this,” she wrote.
In the days leading up to the election, D.C. elections workers drove around the city, delivering some ballots by hand. On Tuesday, they emailed ballots that could be printed and mailed that day or submitted electronically to about 500 voters, Bennett said.
Bennett said the board would be calling all 500 or so voters who used that method to confirm that they themselves completed their ballots.
“Unfortunately, it ended up being used more times than is normal,” Bennett said about the emailing of ballots, an option the District normally offers only to overseas military personnel and certain people with disabilities.
He said he does not consider email to be an option for November’s general election.
Bennett said he could not answer key questions about what went wrong with the absentee ballots: how many were sent out but never received (including some that were mailed with incomplete addresses on the envelope), and how many were never sent at all because of technical failures. He vowed to research both problems in the weeks to come.
“I really don’t have a good, clear view in my own mind when the red flag really popped up,” he said.
Some skeptics of voting by mail have worried that ballots that were sent but never made it to their intended recipients might be intercepted, and that someone else might use them to fraudulently vote. Bennett said that the District guards against that: Every voter’s signature is on file, and the signature on each ballot is checked against that signature before the ballot gets counted. “We have some where they don’t reasonably match up, and we do contact the voter,” he said.
In Maryland, voters who wanted to drop off mail-in ballots by Tuesday’s 8 p.m. deadline also encountered problems, according to election watchdogs. Jammed parking lots prevented them from leaving their ballots before the boxes were locked for the night.
Nikki Charlson, deputy administrator of the State Board of Elections, said mailed-in and dropped-off ballots were being quarantined by local boards for at least 24 hours, in case they were contaminated with coronavirus. New vote totals will be announced each day as those ballots are counted.
“The lessons we take from this election we will certainly apply to the November election in whatever format that election is held,” she said. “We’ve never ran an election in a pandemic before, so we’re going to learn a lot.”
Baltimore City Council President Brandon M. Scott (D), a candidate for mayor, praised what he called a “historic election under unprecedented circumstances.”

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However, he said, he remained frustrated by what he called “administrative challenges.” “When people marched and died for this right, and when voting rights are under attack at the national level, it is everyone’s responsibility to take this matter with the greatest seriousness,” Scott said in a statement. Emily Scarr, director of the Maryland Public Interest Research Group, said the state should immediately begin preparing for the November election, including an aggressive outreach program to encourage voters to update their addresses, more time for voters to complete mail-in ballots and more in-person voting options. She also called for public hearings on the printing and mailing errors that state elections officials have blamed in part on their Minnesota-based vendor, SeaChange. “Maryland had the opportunity to protect both its people’s health and the constitutional right to vote — and we fell short,” she said in a statement. “Our leaders . . . weren’t prepared for the problems that arose.” In the District, about a third of the voters interviewed by The Washington Post on Tuesday said they were waiting in line because they had requested absentee ballots that never came. Janice Lewis feared catching the coronavirus, so she called the Board of Elections to be sure she would receive an absentee ballot in the mail. She didn’t. “I’m 70 years old. I’m definitely worried about it. But I wanted to vote,” she said, standing in a line that snaked through the dark Malcolm X Opportunity Center parking lot at 9:15 p.m. Tia Jackson got in line at 7 p.m., with her 10-month-old and 3-year-old in a Radio Flyer wagon at her side. By 9 p.m., it was past their bedtime, and she was still far from the front of the line, struggling to entertain them with a troll doll and the “Baby Shark” song. “It’s frustrating,” she said. “I’ll wait it out. It’s always important to vote.” Fenit Nirappil contributed to this report.
Julie Zauzmer Julie Zauzmer is a religion reporter. She previously covered local news at The Washington Post and at the Philadelphia Inquirer. Follow 
Jenna Portnoy Jenna Portnoy covers Virginia, Maryland and D.C. politics for The Washington Post. She previously worked for the Newark Star-Ledger and the Allentown Morning Call, and has been
Erin Cox Erin Cox is a politics reporter covering Maryland. She joined The Washington Post in 2018 and has written about Maryland since 2007. Follow 
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Exhibit 2

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ELECTION OFFICIALS’ MANUAL Michigan Bureau of Elections Chapter 6, November 2019
Chapter 6 Michigan’s Absentee Voting Process
TABLE OF CONTENTS
Eligibility ....................................................................................................................................................................................... 2 Application Process:.....................................................................................................................................................................2 Maintaining a Permanent Absent Voter Application List: ...........................................................................................................2 Submission of Absent Voter Ballot Applications:.........................................................................................................................3 Office Hours on Saturday and/or Sunday Preceding Election: ....................................................................................................4 Restrictions on Possession of Signed Absentee Ballot Applications:...........................................................................................4 Application Verification Requirement .........................................................................................................................................5 Issuance of Absentee Ballots .......................................................................................................................................................5 Anatomy of an Absent Voter Ballot: ............................................................................................................................................6 Absentee Voters Who Receive Assistance...................................................................................................................................6 Return of Absentee Ballots ..........................................................................................................................................................7 Ballot Pick-up by Election Official ................................................................................................................................................7 Ballot Verification Requirement ..................................................................................................................................................8 Options for Voters who wish to spoil their ballot........................................................................................................................8 Penalties: .....................................................................................................................................................................................9 Posting Absentee Voting Information .......................................................................................................................................11 Recording AV Ballot Information in QVF Required ....................................................................................................................11 Issuing AV Ballots to Election Eligible Voters who have moved ................................................................................................12 Reporting Postal Service Issues…………………………………………………………………………………………………………………………………………….14
Chapter 6, Page 1 of 14

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ELECTION OFFICIALS’ MANUAL Michigan Bureau of Elections Chapter 6, November 2019
ELIGIBILITY: Any registered voter is eligible to obtain an absentee ballot for an upcoming election.
APPLICATION PROCESS: A voter who wishes to receive an absentee ballot must request it in writing
from the clerk; absentee ballots may not be delivered as a result of an oral request made in person or over the phone. However, an absentee ballot application form may be provided as a result of an oral request.
The written request may be on a form supplied by the clerk, in a letter or on a postcard. The written request must include the applicant’s signature. Applications for absent voter ballots may be received by hand, via postal mail, fax or email, as long as the voter’s signature is visible.
Picture ID for In-Person Absent Voter Ballot Application: If a voter applies to receive an absent voter ballot in person at the clerk’s office, the voter is required to present a picture ID or sign the Affidavit of Voter not in Possession of Picture Identification form. The acceptable ID documents and Affidavit form are the same as those required for in-person voter registration and in-person voting on election day (see list included in Chapter II–Voter Registration and sample form in Appendix I). If a voter does not have ID and signs the Affidavit, that voter’s absentee ballot must be processed as a challenged ballot on Election Day. This procedure is only applicable to voters who expect to leave the clerk’s office with their ballot in hand. This procedure is not applicable to voters who drop off their application for an absent voter ballot and expect to be mailed their absent voter ballot.
MAINTAINING A PERMANENT ABSENT VOTER APPLICATION LIST: A jurisdiction may
choose to maintain a list of voters, who wish to be sent an absent voter ballot application prior to each election. This is commonly referred to as a ‘permanent absent voter’ list. While a permanent absent voter list is not required, the Bureau of Elections strongly recommends it’s use for effective management of absent voter ballots. Aapplications must be issued for each election. Any voter who wishes to be added to the permanent absentee voter list is allowed to do so. Clerks should track their permanent absent voter lists through the Qualified Voter File (QVF). Clerks may not mail absent voter applications without having received a verbal or written request.
NOTE: If a clerk does not maintain a permanent absent voter list and receives a request from a voter to be added to a permanent absent voter list, the clerk must notify the voter that this service is not offered by the clerk and that the voter will need to request an application prior to every election.
Chapter 6, Page 2 of 14

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1268 Page 10 of 29
ELECTION OFFICIALS’ MANUAL Michigan Bureau of Elections Chapter 6, November 2019
County clerks have no authority to distribute absentee ballot applications unless the county clerk is acting in the role of school election coordinator. The same standards detailed above for the mailing of absentee ballot applications apply to county clerks as they perform their school election coordinator role.
SUBMISSION OF ABSENT VOTER BALLOT APPLICATIONS: The election official or other
authorized personnel appointed by the election official must be available in the election official’s office or at some other published or posted location to facilitate the receipt and processing of absent voter ballot requests as follows:
• “Regular” Request Deadline: If the ballot must be issued by mail, the application for the ballot must reach the election official no later than 5:00 p.m. on the Friday prior to the election.
• “Late” Request Deadline: Absent voter ballots can be received by a voter in person anytime up to 4:00 p.m. on the day prior to the election. A voter who visits his or her clerk’s office or school election coordinator’s office on the day prior to the election to obtain an absent voter ballot must vote the ballot in the office; the voter is not permitted to leave the office with the ballot.
o New registrants will be eligible to receive an AV ballot even after the close of the 4:00 pm window on the day before the election, but will have to vote the ballot in person in the office.
• Same Day Voter Registration Request Deadline: A voter who registers to vote on Election Day by appearing in person at his or her clerk’s office is also eligible to obtain an absent voter ballot to vote in person at the clerk’s office until 8:00 p.m. on Election Day.
• “Emergency” Request Deadline: An elector may make an “emergency” request for an absentee ballot if he or she cannot attend the polls because of 1) personal disablement or 2) a family death or illness which will require that the elector leave the community for the entire time the polls are open on Election Day.
“Emergency” requests for absentee ballots must be made after the deadline for making “regular” requests for absentee ballots (5:00 p.m. on the Friday before the election) and before 4:00 p.m. on Election Day. The emergency must have occurred at a time which made it impossible for the voter to apply for an absentee ballot by the statutory deadline for “regular” applications If an “emergency” absent voter ballot is requested, the person making the application may authorize the person delivering the application to pick up and deliver the ballot. The authorization to pick up and deliver
Chapter 6, Page 3 of 14

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1269 Page 11 of 29
ELECTION OFFICIALS’ MANUAL Michigan Bureau of Elections Chapter 6, November 2019
the ballot must be in writing and must be signed by the applicant. An “emergency” absentee ballot may also be delivered by hand to the applicant by a person authorized by the clerk to handle this task.
OFFICE HOURS ON SATURDAY AND/OR SUNDAY PRECEDING ELECTION: Starting in
2019 and with the passage of Proposal 18-3: the clerk or a deputy clerk of each city or township shall be available in his or her office to issue and receive absent voter ballots for any combination of at least 8 hours on the Saturday or Sunday immediately before election day. The Clerk shall post and enter the these hours in to QVF Clerk Contacts at least 30 days prior to election day.
RESTRICTIONS ON POSSESSION OF SIGNED ABSENTEE BALLOT APPLICATIONS: The
persons who may be in lawful possession of a signed absentee ballot request are limited to: • the applicant • a member of the applicant’s immediate family • a person residing in the applicant’s household • a person whose job normally includes the handling of mail (but only during the course of his or her employment) • a registered elector asked to handle the application by the applicant • an authorized election official.
NOTE: Absent voter ballot applications may be received via email or fax as long as the voter’s signature is on the application and the signature is visible for verification purposes.
A registered elector who returns an absentee ballot application at the request of the applicant must sign the following certificate which appears on the application form:

CERTIFICATE OF AUTHORIZED REGISTERED ELECTOR
RETURNING ABSENTEE BALLOT APPLICATION

I certify that my name is

, my address is

,

and my date of birth is

; that I am delivering the absentee ballot

application of

at his or her request; that I did not solicit or request to return the application; that I have not made any

markings on the application; that I have not altered the application in any way; that I have not influenced

the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan

election law.

X

Date

Signature

Chapter 6, Page 4 of 14

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1270 Page 12 of 29
ELECTION OFFICIALS’ MANUAL Michigan Bureau of Elections Chapter 6, November 2019
APPLICATION VERIFICATION REQUIREMENT: Upon the receipt of a completed absentee ballot
application, the signature appearing on the application must be checked against the signature on the applicant’s voter registration record to verify the applicant’s identity.
NOTE: An absent voter application with Power of Attorney (POA) signature in lieu of the voter’s signature cannot be accepted. Michigan Election law provides for a voter unable to sign due to physical impairment to make a “mark” or they may use a signature stamp.
ISSUANCE OF ABSENTEE BALLOTS: A request for an absentee ballot must be processed
immediately. It is recommended that the ballot be issued within 24 hours of the receipt of the application. Applications should be processed in the order they are received. This will avoid criticism that certain voters are being given preferential treatment. (While absentee ballots must be issued in the same order in which they are requested, an election official is not prohibited from issuing an absentee ballot to a voter applying in person despite the fact that there may be applications on file which have not yet been honored.)
A voter can receive an absentee ballot at his or her registration address, at any address outside of his or her jurisdiction of residence or at a hospital, nursing home or similar institution. Also, a clerk may mail an absentee ballot, upon the request of the voter, to a post office box if the post office box is where the voter normally receives mail and the voter does not receive mail at his or her registration address. A voter cannot receive an absentee ballot at any residential address within his or her city or township of registration other than his or her registration address.
Absentee ballots may not be forwarded. Absentee ballot outgoing envelopes should have the postal instruction “Return Service Requested” printed on them.
Campaign brochures or any other type of unauthorized materials may not be distributed with absentee ballots. It merits specific emphasis that by law (MCL 168.931a) the name of an elected or appointed official may not appear on any ballot-related materials; “ballot-related material” is defined as anything distributed with an absentee ballot, including the instructions, the envelope in which the absentee ballot is mailed, and the absentee ballot return envelope.
An absentee ballot must be transmitted to the applicant by mail if there is an adequate amount of time for the voter to receive the ballot by mail, vote the ballot and return the ballot prior to 8:00 p.m. on the date of the election. To avoid any appearance of impropriety, absentee ballots should not be delivered by hand unless the hand delivery of the ballot is necessary to ensure the timely return of the ballot.
Chapter 6, Page 5 of 14

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1271 Page 13 of 29
Exhibit 3

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1272 Page 14 of 29

OFFICIAL WEBSITE OF MICHIGAN.GOV

The Office of
Secretary of State Jocelyn Benson

Í

SOS

Benson: All voters receiving applications to vote by mail

MAY 19, 2020
Ensures all Michiganders can vote safely
Secretary of State Jocelyn Benson announced today that all registered voters in Michigan will receive an application to vote by mail in the August and November elections.
“By mailing applications, we have ensured that no Michigander has to choose between their health and their right to vote,” said Benson. “Voting by mail is easy, convenient, safe, and secure, and every voter in Michigan has the right to do it.”
Of the 7.7 million registered voters in the state, about 1.3 million are on the permanent absent voter list, and their local election clerk mails them applications ahead of every election. Additionally, some jurisdictions are mailing applications to all local registered voters. The Michigan Department of State’s Bureau of Elections has ensured all remaining registered voters receive an application.
“We appreciate that some clerks are proactively protecting public health by mailing applications to all their registered voters, and we are fulfilling our responsibility to provide all voters equal access,” said Benson. “We know from the elections that took place this month that during the pandemic Michiganders want to safely vote.”
Record-breaking turnout was recorded in the approximately 50 elections held across 33 counties on May 5, with nearly 25 percent of eligible voters casting ballots and 99 percent of them doing so by mail or in a drop box. From 2010 to 2019, average turnout in local elections in May was 12 percent.
The application mailing from the Bureau of Elections includes a cover letter with instructions from Secretary Benson. Once a voter signs their application, they can mail it or email a photo of it to their local clerk, whose contact information is included on the application. The application is also available for download at Michigan.gov/Vote. At the same website, voters can also register and join the permanent absent voter list so they always have the option to vote by mail.
“The vast majority of voters across the political spectrum want the option to vote by mail,” said Benson. “Mailing applications to all registered voters is one of the ways that we are ensuring Michigan’s elections will continue to be safe, accurate and secure.”
# # #
For media questions, contact Tracy Wimmer at 517-281-1876.
We welcome questions and comments at the Contact the Secretary of State page.

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1273 Page 15 of 29
Customers may call the Department of State Information Center to speak to a customer-service representative at 888-SOS-MICH (767-6424).

SOS Home FAQ Online Services Forms Contact the Secretary of State FOIA

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES

COPYRIGHT 2020 STATE OF MICHIGAN

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1274 Page 16 of 29
Exhibit 4

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1275 Page 17 of 29

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1276 Page 18 of 29

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1277 Page 19 of 29

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1278 Page 20 of 29
Exhibit 5

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1279 Page 21 of 29
Vanderburgh Democratic activist accused of hundreds of illegal mailings
Thomas B. Langhorne, Evansville Courier & Press Published 3:55 p.m. CT May 18, 2020 | Updated 5:59 p.m. CT May 18, 2020
EVANSVILLE, Ind. — A Vanderburgh County Democratic Party activist is accused of illegally sending hundreds of absentee ballot applications with instructions leaving voters no option other than participating in the June 2 Democratic primary election. In a (http://file:///C:/Users/tlanghorne/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/K2N73KGL/VCEB-20200514-Letter%20to% 20Prosecutor-Referral-Primary%20Election-2020-Absentee%20Ballot%20Applications.pdf)four-page letter outlining the legal case against Evansville resident Jan Reed, the Vanderburgh County Election Board on Thursday referred the matter to Prosecutor Nick Hermann. Reed, 68, did not return a telephone message Monday. The Election Board's letter includes samples of applications Reed allegedly sent to voters pre-marking for Democrats the section that allows them to choose a party. A copy of Reed's instructions to voters states that section "needs no input." More: 10th Hamilton Pointe nursing home resident dies of COVID-19 (/story/news/2020/05/18/ninth-hamilton-pointe-nursing-home-resident-dies-ofcovid-19/5213655002/) More: With 200-plus cases, Vanderburgh forms a coronavirus task force (/story/news/2020/05/15/200-plus-cases-vanderburgh-forms-coronavirus-taskforce/5199074002/) More: 2020 Visions of Graduation: C&P providing graduate portraits amidst coronavirus pandemic (/story/news/2020/05/16/2020-visions-graduation-c-pproviding-graduate-portraits-amidst-coronavirus-pandemic/5202842002/) But it does, said County Clerk Carla Hayden, who said voters are the ones who decide which party's primary they wish to participate in.
ADVERTISEMENT
"There's nothing wrong with sending out applications. You can do that all day long. But you can't pre-mark which ballot they want," said Hayden, a

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1280 Page 22 of 29
Republican. Reed's instructions allegedly telling voters that section of the application "needs no input" was the crucial indicator that her actions were intentional, Hayden said. "They (Reed) knew what they were doing; I'll put it that way," the clerk said before confirming Reed is the target of the complaint. "They knew what they were doing, and they said as much. It wasn't like, 'We misunderstood something.' They said flat-out that you don't have to do anything in that area of the application." Hayden said her office began receiving complaints about Reed's absentee ballot applications in April and advised her to stop. The clerk's office asked Democratic Party chair Edie Hardcastle to speak to Reed also — but she continued to send them out. The election board's letter to Hermann states: "Unfortunately, given the postmarks on some of the envelopes in which she mailed out the invalid Applications, Ms. Reed has continued to do so even after being instructed not to mail such items."


Hayden spoke plainly about Hardcastle's effort to stop the illegal mailings. "(Reed) still didn't stop," the clerk said. Although Hayden said the mailings went out for "weeks, at least," Hardcastle cited a period of "confusion" that she said apparently lasted a week. The Democratic chair confirmed she did ask Reed to stop sending the pre-marked absentee ballot applications. "I think there were multiple lines of communication going on, because (Reed) was also communicating at the very same time with the clerk's office," Hardcastle said. "I don't know what she did and didn't understand clearly at the time. All I know is we sent her not only verbal communication but written communication with regards to what was OK. "The election board chose to, instead of bringing Jan in to have an investigation, basically punted it to the prosecutor's office, and that was a surprise," Hardcastle said. But the Democratic Party chair acknowledged that she did speak to Reed on Monday, April 20, 2020, and did advise her to stop. "It was my impression that she clearly understood that, that was not OK. It's pretty straightforward," Hardcastle said. Did Reed keep mailing out the pre-marked applications? "Our understanding is that it needed to be communicated again by that Friday, and I re-communicated it again later that week. I'm not sure that she understood completely," Hardcastle said.

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1281 Page 23 of 29 

Reed is a Democratic Party precinct committee member, but Hardcastle said she wasn't acting in the party's name or with its money. Hayden said Reed's mailings "put a burden on our office, because what we've been doing, although we're not required to, is we've been sending these people replacement applications." Voters could fill out the new applications and get a new absentee ballot. Reed has been active on Facebook in recent days, posting a steady stream of pro-Democratic messages, including one Monday morning in praise of former Democratic President Barack Obama. Reed attended a December rally calling for the impeachment of Republican President Donald President Trump at the Federal Building in Evansville. Carrying an orange Trump balloon, Reed said she had believed Trump should be impeached since the release of the Mueller report on possible Russian Interference in the 2016 presidential election.
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"I didn't like him before that, but it wasn't the law — it's just that he was breaking all the norms and molds of our society," Reed told the newspaper (/story/news/2019/12/17/americas-angry-national-divide-over-trump-comes-to-evansville/2676718001/). Read or Share this story: https://www.courierpress.com/story/news/2020/05/18/vanderburgh-democratic-activist-accused-hundreds-illegalmailings/5215294002/

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1282 Page 24 of 29
Exhibit 6

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1283 Page 25 of 29
West Virginia Mail Carrier Charged With Altering Absentee Ballot Requests
BY JOHN RABY / AP MAY 27, 2020 8:33 AM EDT
(CHARLESTON, W.Va.) — A West Virginia postal carrier has been charged with attempted election fraud after eight mail-in requests for absentee voter ballots had their party affiliations altered, including five from Democrat to Republican, federal prosecutors said Tuesday.
Thomas Cooper delivered the forms last month to the Pendleton County clerk from eight voters, U.S. Attorney Bill Powell said in a statement.
An investigation by the secretary of state’s office found five of the ballot requests were changed from Democrat to Republican with a black ink pen, according to a federal affidavit.
Absentee ballots have become a political flashpoint nationally in recent weeks, often along partisan lines. Some state governors have moved to make absentee ballots more available in this year’s elections because of concerns about the spread of the coronavirus. Other elected officials, including President Donald Trump, have raised concerns that expanding the practice would increase the likelihood of election fraud. Examples of mail-in ballot fraud have been minimal, and Trump himself has voted absentee in recent elections.
Absentee ballot applications were mailed to all registered voters in West Virginia last month in a bid to encourage mail-in voting during the coronavirus pandemic.
Bennie Cogar, an attorney general’s office investigator who conducted the probe on behalf of the secretary of state’s office, said in the affidavit that the Pendleton County clerk called some of the voters after receiving the requests because she knew they were not Republicans. The clerk then contacted the secretary of state’s office to report the alterations.
Read more: ‘This Could Make or Break the Election.’ How States Are Battling Over Who Gets to Vote in the 2020 Election
On the other three requests, the voters’ party was not changed. However, in addition to the “Republican” box originally checked in blue ink, the word “Republican” was later circled in black ink, the affidavit said.

Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1284 Page 26 of 29

Cooper, 47, of Dry Fork, held a postal contract to pick up mail in the three towns in which the voters live, the affidavit said.
Cooper admitted in an interview with Cogar and a postal inspector that he changed some of the requests he picked up from the Onega post office from Democrat to Republican.
According to the affidavit, when he was then asked about the other requests, Cooper said, “I’m not saying no,” but if the requests were picked up along his postal route, “I would take the blame.” Cooper was then asked if he was “just being silly” and he replied he did it “as a joke” and that he didn’t know those voters.
It wasn’t immediately clear whether Cooper has an attorney who could comment on the charge on his behalf.

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Case 4:19-cv-13341-SDD-RSW ECF No. 70-1 filed 06/05/20 PageID.1285 Page 27 of 29
Exhibit 7

CasCe a4s:1e91-c:2v0-1-c3v3-4010-4S1D4D-P-LRMSW-PJGECEFCNFo.N7o0.-213 ffiilleedd 0056//2085//2200 PPaaggeeIDID.1.1029816 PPagaege1 2o8f 2of 29

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC,

)

d/b/a GRAND HEALTH PARTNERS, et al.,

)

Plaintiffs,

)

) No. 1:20-cv-414

-v-

)

) Honorable Paul L. Maloney

GRETCHEN WHITMER, et al.,

)

Defendants.

)

)

NOTICE OF HEARING REGARDING CERTIFICATION OF ISSUES TO MICHIGAN SUPREME COURT

On review of Plaintiffs’ complaint, it appears that resolution of portions of this case

will require the Court to consider issues of Michigan law that have never been considered by

the Michigan Court of Appeals or the Michigan Supreme Court. The Court is mindful that

the “last word” on the meaning of state statutes requiring judicial interpretation belongs not

to federal district courts, but to the state supreme court. See Railroad Commission of Texas

v. Pullman Co., 312 U.S. 496, 499-500 (1941). As such, the Court may have to postpone the

exercise of its jurisdiction until the state court has had “a reasonable opportunity to pass

upon” the relevant questions of law. Harrison v. Nat’l Ass’n for the Advancement of Colored

People, 360 U.S. 167, 176-77 (1959).

Accordingly, pursuant to Local Civil Rule 83.1 and Michigan Court Rule 7.308(A)(2),

the Court is considering certifying the following issues to the Michigan Supreme Court:

CasCe a4s:1e91-c:2v0-1-c3v3-4010-4S1D4D-P-LRMSW-PJGECEFCNFo.N7o0.-213 ffiilleedd 0056//2085//2200 PPaaggeeIDID.1.1029827 PPagaege2 2o9f 2of 29

1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et

seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor

Whitmer has the authority to issue or renew any executive orders after April 30,

2020.

2. Whether the Emergency Powers of the Governor Act and/or the Emergency

Management Act violates the Separation of Powers and/or the Non-Delegation

Clauses of the Michigan Constitution.

To determine whether certification of these issues would be appropriate, a hearing is

scheduled for June 10, 2020, at 1:30 p.m., 174 Federal Building, 410 W. Michigan Ave.,

Kalamazoo, Michigan. Should either party wish to file a brief in advance of the hearing, it is

due no later than June 5, 2020, at 5:00 p.m.

IT IS SO ORDERED.

Date: May 28, 2020

/s/ Paul L. Maloney Paul L. Maloney United States District Judge

2

 
 Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1319 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and
Republican National Committee, Michigan Republican Party, Michigan House of Representatives, and Michigan Senate,
Intervenor- Defendants.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE JUDGE R. STEVEN WHALEN
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR A
PRELIMINARY AND PERMANENT INJUNCTION

Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1320 Page 2 of 21
INTRODUCTION The Absentee Ballot Organizing Ban and the Voter Transportation Ban criminalize core political activity and conflict with federal law. Intervenors’ briefs, addressed together in this reply, do not give cause for the Court to reconsider its opinions expressed in the order denying (in part) the Secretary’s motion to dismiss, or to withhold equitable relief in advance of a critically important election. On this record, Plaintiffs submit that their request for an injunction should be granted.
ARGUMENT I. Plaintiffs are likely to succeed on the merits of their claims.
A. Absentee Ballot Organizing Ban 1. Void-for-Vagueness
First, Plaintiffs are likely to succeed on their claim that the Absentee Ballot Organizing Ban is unconstitutionally vague. Intervenors argue that the challenged statute must be unconstitutionally vague “in all of its applications” for Plaintiffs to succeed on their facial challenge to the law. ECF No. 68 at 22; ECF No. 70 at 34. Not so. “The degree of vagueness that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment.” Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 251–52 (6th Cir. 1994) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). The Absentee Ballot Organizing Ban
- 1 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1321 Page 3 of 21
regulates expression protected by the First Amendment and carries criminal penalties; accordingly, the “standards of permissible statutory vagueness are strict.” NAACP v. Button, 371 U.S. 415, 432 (1963); see also Springfield Armory, Inc., 29 F.3d at 252 (explaining when a law has criminal penalties, “a relatively strict test is warranted” (citing Hoffman, 455 U.S. at 499)); League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 727 (M.D. Tenn. 2019) (citing Hoffman, 455 U.S. at 499).
Nor are Plaintiffs’ void-for-vagueness claims speculative. See ECF No. 68 at 24; ECF No. 70 at 36. On this score, Intervenors do nothing more than rehash same arguments previously made by Defendant, Compare ECF No. 68 at 10, ECF No. 70 at 36 with ECF No. 27 at 36, and previously rejected by the Court, ECF No. 59 at 35. Intervenors attempt to define “solicit” to mean “request,” see id., but the statute’s use of both terms suggest that solicit means something different. See In re Davis, – F.3d –, No. 19-3117, 2020 WL 2831172, at *6 (6th Cir. June 1, 2020). As this Court has already recognized, the statute does not resolve what conduct is and is not captured by the law. ECF No. 59 at 35 (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 621 (1976)). The argument is no more persuasive the second time around.
2. First Amendment Second, Plaintiffs are similarly likely to succeed on their First Amendment challenge to the Absentee Ballot Organizing Ban. The Court has already held that
- 2 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1322 Page 4 of 21
the law burdens First Amendment activity and that it is subject to, at a minimum, exacting scrutiny. ECF No. 59 at 29-32, 37-38. In urging the Court to reconsider this ruling, Intervenors rely on out-of-circuit precedent addressing voter registration largely raised by the Defendant in briefing the motion to dismiss. Compare ECF No. 68 at 14-17; ECF No. 70 at 20-21 with ECF No. 27 at 25. But, as this Court already explained, the reasoning of Hargett is more persuasive, and the expressive activity at issue in organizing absentee ballot applications “is difficult to distinguish” from that at issue in Meyer v. Grant, 486 U.S. 414 (1988) and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). ECF No. 59 at 37.
Intervenors’ arguments otherwise take a myopic view of the speech and conduct implicated by the Absentee Ballot Organizing Ban. They urge the Court to focus only on the ban of the actual possession and submission of absentee ballot applications. ECF No. 68 at 15; ECF No. 70 at 19. This argument, of course, ignores that the law directly prohibits speech because it bans requests to assist voters, and possibly even bans other speech aimed at eliciting a request for assistance. Moreover, the law’s practical effect inhibits conversations about voting by absentee ballot and ultimately larger political conversations. Intervenors’ argument is also contrary to the approach taken by the Supreme Court in other First Amendment cases. For example, in Buckley and Meyer, the Court did not evaluate the narrowest characterization of the conduct regulated by the law—the collection of signatures on
- 3 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1323 Page 5 of 21
a petition—but rather considered the interactions that were impacted by banning that conduct. Meyer, 486 U.S. at 421-22; Buckley, 525 U.S. at 192. Similarly, in an abortion clinic buffer zone case, the Supreme Court looked beyond the law’s regulation of standing on a sidewalk in and of itself to consider the expressive activity that was burdened when individuals lost access to that forum. McCullen v. Coakley, 573 U.S. 464, 496-97 (2014) (striking down law that made it a crime to stand within 35 feet of the entrance to an abortion clinic as an infringement on right to speech). Likewise, the Absentee Ballot Organizing Ban burdens Plaintiffs’ ability to engage in one-on-one communications about the importance of voting in making by prohibiting circumstances under which that communication would take place. ECF No. 22-4 ¶ 12 (Decl. of Guy Cecil); ECF No. 22-5 ¶¶ 16-22 (Decl. of A. Hunter); ECF No. 22-6 ¶¶ 18, 26 (Decl. of M. Lubin).
The Absentee Ballot Organizing Ban does not survive strict, exacting, or indeed any level of scrutiny.1 Intervenors repeatedly state that preserving the integrity of elections is a compelling interest. Plaintiffs do not disagree. But Intervenors never actually address Plaintiffs’ arguments that the Absentee Ballot Organizing Ban is not related to (much less narrowly tailored to) achieving that goal
1 Plaintiffs maintain that the Court should apply strict scrutiny because the law requires prosecuting attorneys to “examine the content of the message that is conveyed to determine whether” the law—and, in particular, the solicitation ban— has been violated. McCullen, 573 U.S. at 479.
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because, among other things, it regulates the application process (not ballot collection), there are alternative systems in place to preserve the integrity of absentee voting, and there are criminal laws that more directly involve tampering with a voter’s efforts to vote absentee. ECF No. 59 at 37-40; see also Decl. of Courtney Elgart dated June 11, 2020, Exs. H, I.
Similarly, Intervenors, in arguing that the law is justifiable as a residency requirement (that is, a limit on application collection to Michigan residents), ignore that the law sweeps much more broadly than that; it prohibits the roughly 750,000 Michiganders who are eligible to register to vote but are not registered from assisting with absentee ballots, ECF No. 22-7 ¶ 6. In addition, the few highly isolated incidents of voter fraud cited by Intervenors in purported justification of the restrictions notably do not involve conduct occurring in Michigan or conduct that would be actually covered by the challenged law. ECF No. 70 at 22-25.2
Finally, a facial challenge is appropriate in this case because the Absentee Ballot Organizing Ban is unconstitutional in nearly all of its applications. United States v. Stevens, 559 U.S. 460, 472-73 (2010). While the law may capture some
2 For example, ballot collection itself is not at issue in this case. And the two incidents cited by Intervenors were related to ballot applications and would not have been captured by the Absentee Ballot Organizing Ban because one involved doctored applications and the other the conduct of a mail carrier, a category of persons exempted under Michigan’s Law, Mich. Comp. Laws § 168.759(4). ECF No. 70 at 25.
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quantum of coercive or fraudulent activity, that activity is already criminalized by other Michigan laws. See, e.g., Mich. Comp. Laws § 168.932(a), and neither Intervenors nor Defendants have identified any other valid application of the law. Otherwise, the law merely functions as a burden on expressive conduct, i.e. absentee ballot application organizing.
3. Preemption under Section 208 of the Voting Rights Act Finally, Plaintiffs are likely to succeed on their claim that the Absentee Ballot Organizing Ban is preempted by Section 208 of the Voting Rights Act (“VRA”). As an initial matter, Intervenors’ assertion that Plaintiffs lack standing to bring the VRA preemption claim is incorrect. “[T]he Supreme Court has permitted organizations to bring suit in VRA claims.” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016) (citing Ala. Legislative Black Caucus v. Alabama, 575 U.S. 254, 268-71 (2015)). And in OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017), the Fifth Circuit found that an organization with a mission that is meaningfully indistinguishable from that of Plaintiff APRI had standing to seek declaratory and injunctive relief based on allegations that a state voting law was preempted by the VRA. Compare id. at 610-14 (finding standing for organization with mission of turning out vote in a community with limited English proficiency), with Decl. of A. Hunter dated June 12, 2020 ¶ 5 (describing APRI as organization with mission of turning out vote in communities with limited English proficiency
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Case 4:19-cv-13341-SDD-RSW ECF No. 72 filed 06/12/20 PageID.1326 Page 8 of 21
and assisting individuals with disabilities). Indeed, the VRA was intended to confer
standing to organizations like Plaintiffs. The legislative history clearly states that an
aggrieved person “may be an individual or an organization representing the interests
of injured persons.” S. Rep. No. 295, 94th Cong., 1st Sess. 1, 40 (1975), reprinted in
1975 U.S. Code Cong. & Admin. News 774, 806–07 (emphasis added). Newman v.
Voinovich, 789 F. Supp. 1410, 1416 (S.D. Ohio 1992), aff’d, 986 F.2d 159 (6th Cir.
1993).3
On the merits, Plaintiffs are likely to succeed on their preemption claim
because Section 208 guarantees that covered voters can choose who assists them in
3 If this Court holds that associational or prudential standing is necessary to assert a VRA claim, it should allow Plaintiffs to amend their complaint to reflect the facts in the attached affidavit, Hunter Decl., supra, which establish that APRI has both. See Warth v. Seldin, 422 U.S. 490, 511 (1975) (explaining that organization has associational standing if “its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit”); Eisenstadt v. Baird, 405 U.S. 438, 445 (1972) (finding sufficient relationship for prudential standing where litigant was an “advocate” for the rights of those on whose behalf he was litigating); Ne. Ohio Coal. for the Homeless v. Husted, No. 2:06-CV-896, 2016 WL 3166251, at *34 (S.D. Ohio June 7, 2016), aff’d in part, rev’d in part, 837 F.3d 612 (6th Cir. 2016) (finding a “close relationship” sufficient for prudential standing where organizations “regularly work with homeless individuals, advocate for their needs, connect them to necessary social services, and encourage their participation in civic life”); id. at *35 (finding “hindrance” where individual right holders “often have difficulty navigating the court system, obtaining counsel, maintaining a consistent address and phone number, and obtaining ID that would allow them access to courtrooms, because they “suffer disproportionately from mental health problems, substance abuse, limited financial resources, and low levels of literacy and education”).
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voting, and the Absentee Ballot Organizing Ban restricts that choice. ECF No. 59 at 42. In an effort to avoid this unavoidable contradiction, Intervenors graft new language on to the statute and conjure up farcical hypotheticals. But, as Intervenors concede, the purpose of Section 208 was to provide covered voters with assistance from persons whom the voters trust. Congress made the decision, as reflected in the plain language of Section 208, that this is best accomplished by allowing the voters, not the state, to choose who assists them with voting.
Finally, Intervenors argue, with tongue firmly in cheek, that fidelity to this policy choice by Congress is not possible lest the state be required to release an inmate from prison if a covered individual chooses to have that inmate assist them with voting. ECF No. 68 at 27. Without the State’s ability to impose “reasonabl[e] restricti[ons]” on the individuals who can provide assistance, a parade of horribles will ensue. ECF. No. 68 at 27. Hardly. Plaintiffs do not argue that the State has an affirmative obligation to secure assistance from the person of a voter’s choosing; instead, they argue merely that the State must get out of the way.4
B. Voter Transportation Ban 1. Void-for-Vagueness
4 The cases cited by Intervenors were in any event wrongly decided, and because they are nonbinding, should not influence this Court’s decision regarding § 208’s scope.
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Plaintiffs are also likely to succeed on their claim that the Voter Transportation Ban is unconstitutionally vague. The point is perhaps best illustrated by Intervenors’ own, very different opinions as to what is covered by the law, especially when contrasted with the state’s own assertions. Indeed, even the Intervenors cannot agree among themselves as to what the law covers.
The Attorney General argued, among other things, that the Voter Transportation Ban covers only quid pro quo arrangements. ECF No. 30 at 45. The Legislature disputes the Attorney General’s interpretation, instead taking the broadest possible position that the law “prohibits paying for others transportation to the polls.” ECF No. 68 at 33. The Republican Organizations end up somewhere in the middle, arguing that the law only applies to providing hired transportation “for the purpose of” securing a voter’s vote. ECF No. 70 at 43-44. When the body that wrote the law, the officer who enforces the law, and major political parties regulated by the law all come to a different conclusion about what it does and does not permit, this is the very definition of “vague.”
2. First Amendment Similarly, Plaintiffs are likely to succeed on their claim that the Voter Transportation Ban violates the First Amendment. Not only does the law burden rides-to-the-polls efforts, ECF No. 59 at 43; ECF No. 22-5 ¶ 13; ECF No. 22-6 ¶¶ 18, 20, 25; ECF No. 22-8 ¶¶ 5, 9, 10; ECF No. 22-1 at 31 n. 8; see also Elgart Decl..
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supra, Ex. G at 3., it directly restricts political spending by setting a spending limit of $0 on rides-to-the-polls efforts. Courts have long held that political spending is constitutionally protected activity subject to exacting scrutiny. ECF No. 59 at 43; see Buckley v. Valeo, 424 U.S. 1, 20-21 (1976); Emily’s List v. FEC, 581 F.3d 1, 1718 (D.C. Cir. 2009). Intervenors do not cite even a single political spending cases to the contrary. Not one.
And the Voter Transportation Ban cannot survive exacting scrutiny. The law is not tailored, much less narrowly tailored, to serve an anticorruption interest. See Emily’s List, 581 F.3d at 18. While other laws in Michigan target corruption, Mich. Comp. Laws § 168.932(a), id. § 168.931(a), the Voter Transportation Ban does not. And neither Attorney General Nessel nor Intervenors have cited any incidents of undue influence related to the provision of hired transportation.5
Intervenors compare using arson laws to regulate fireworks with using the Voter Transportation Ban to target undue influence. ECF No. 68 at 34-35. While the
5 Intervenors argue they should not be faulted for being unable to point to instances of voter fraud related to hired transportation because of how long the statute has been in effect, ECF No. 68 at 34, but also fail to cite examples of this type of fraud from outside of Michigan. Yet, as Plaintiffs have noted, Michigan is the only state that criminalizes hired transportation for voters. Intervenors also criticize Plaintiffs for not citing case law that specifically states that paying for transportation is protected speech. ECF No. 70 at 40-41. But paying for transportation to assist voters in getting to the polls is legal under federal law and the law of the 49 other states; so it is not clear where or when the issue would have been litigated.
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regulation of fireworks may prevent their use in burning down structures, fireworks are regulated in their own right because they are dangerous, unstable, and can injure their users. No such independent basis for regulation exists with regard to the Voter Transportation Ban. Simply put, the law serves no purpose outside decreasing the risk of undue influence that is fully captured by Michigan’s other laws while sweeping in significant constitutionally protected expression within its prohibitions.
3. Preemption under the Federal Election Campaign Act Plaintiffs are also likely to succeed on the merits of their claim that the Voter Transportation Ban is preempted by the Federal Election Campaign Act (“FECA”). FECA preempts the Transportation Ban—through both express and conflict preemption—because it “functions as a limitation on expenditures by criminalizing disbursements for providing transportation to the polls for all elections including federal elections.” ECF No. 59 at 50–51.6 Intervenors raise two threshold arguments—that this Court is an improper venue and that Plaintiffs lack a cause of action. They are wrong on both counts. First, this Court is a proper venue for Plaintiffs’ preemption claim. While FECA does establish jurisdiction for challenges to Federal Election Commission agency actions
6 As the Court correctly noted in its order on Defendant’s motion to dismiss, the relevant regulations that permit corporations to “provide” transportation arise “in the context of making ‘disbursements’ that is, spending money, to provide these services.” ECF No. 59 at 52.
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in the District Court for the District of Columbia, 52 U.S.C. § 50109(a)(1), it has no such limitation for actions in equity bringing FECA preemption claims. Indeed, numerous courts across the country (including the Sixth Circuit) have decided FECA preemption claims over the years.7 In Bunning v. Kentucky, 42 F.3d 1008 (6th Cir. 1994), for example, the sole cause of action was a FECA preemption claim brought in federal court in Kentucky to enjoin the enforcement of a Kentucky law. The Sixth Circuit held both that the district court had subject matter jurisdiction to hear the single-claim case and that FECA preempted state law. Id. at 1011–13.
Second, Plaintiffs properly brought an action in equity to enforce FECA. Federal courts regularly hear preemption claims in equity, and their equitable power “to enjoin unlawful executive action is subject to express and implied statutory limitations.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). As the Supreme Court has “long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted.” Id. at 326 (citing Ex parte Young, 209 U.S. 123, 155–156 (1908)).
7 E.g., Stern v. Gen. Elec. Co., 924 F.2d 472, 475 (2d Cir. 1991) (exercising jurisdiction over a FECA preemption claim); Teper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996) (same); Reeder v. Kansas City Bd. of Police Comm'rs, 733 F.2d 543, 545 (8th Cir. 1984) (same); Weber v. Heaney, 793 F. Supp. 1438, 1442 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) (same).
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Intervenors’ reliance on Armstrong is simply misplaced. ECF No. 70 at 46. In Armstrong, the Supreme Court held that although the Supremacy Clause does not create a cause of action, 575 U.S. at 325, federal courts have equitable power to “enforce federal law” unless Congress has “displaced” that power. Id. at 329. The Court held that such a displacement of equitable power had taken place in Armstrong, but no such displacement has taken place here. To the contrary, Congress has sanctioned federal courts’ equitable power to enjoin conflicting state law by including an express preemption provision in the statute. 52 U.S.C. § 453.
Intervenors also argue that FECA does not preempt the Voter Transportation Ban, relying on the “voting fraud” carveout in 11 C.F.R. § 108.7(c)(4) which provides that FECA “does not supersede State laws” that provide for “[p]rohibition of false registration, voting fraud, theft of ballots, and similar offenses.” ECF No. 68 at 39; ECF No. 70 at 50. But of course the Voter Transportation Ban is, in no way, tied to the prevention of voting fraud. It does not even criminalize the transportation of voters to the polls; it criminalizes spending money to transport voters to polls, which is expressly permitted by FECA regulations.
Intervenors’ invocation of Dewald v. Wriggelsworth, 748 F.3d 295 (6th Cir. 2014), is similarly misguided. The Sixth Circuit did not squarely address the question of FECA preemption in Dewald; instead it addressed whether the stringent standards of AEDPA were met. See id. at 301. Accordingly, the habeas petitioner in
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that case was required to prove that it was clearly established law that FECA preempted Michigan’s common-law fraud and theft statutes as applied to his case at the time he was convicted. Here, by contrast, the court must determine whether FECA preempts the Transportation Ban now, not whether it clearly did so at some point in the past.
C. Abstention is not warranted. Intervenors’ last-ditch arguments that Plaintiffs’ vagueness challenges to the Absentee Ballot Organizing Ban and Voter Transportation Ban should cause the Court to abstain under the Pullman doctrine simply cannot be supported. Abstention is the rare exception, not the rule. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). This is particularly true in cases involving facial challenges based on the First Amendment, such as Plaintiffs’ challenges to the Absentee Ballot Organizing Ban and Voter Transportation Ban. See, e.g., City of Houston v. Hill, 482 U.S. 451, 467 (1987); Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965) (“[A]bstention . . . is inappropriate for cases [where] . . . statutes are justifiably attacked on their face as abridging free expression.”). “In such case[s] to force the plaintiff who has commenced a federal action to suffer the delay of statecourt proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.” Hill, 482 U.S. at 467-68 (alteration in
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original) (quoting Zwickler v. Koota, 389 U.S. 241, 252 (1967)). Intervenors cite no basis for taking this extraordinary action here.
Further, neither Ban is “‘fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,’” the question that the Supreme Court has described as “pivotal . . . in determining whether abstention is appropriate.” Id. at 468 (quoting Harman v. Forssenius, 380 U.S. 528, 534-35 (1965)). In other words, unless there is a limiting construction that would affect a state statute’s constitutionality, there is no reason for a federal court to abstain from exercising jurisdiction—even if the state statute has not yet been interpreted by state courts. Id. (internal citations omitted). Here, however, the Attorney General proposes one construction of the Voter Transportation Ban that is at odds with the statute’s plain text, ECF No. 30 at 37-39, Hill, 482 U.S. at 468 n. 18, and Intervenors do not offer their own construction or adopt the Attorney General’s. None of the Defendants offer a limiting construction of the Absentee Ballot Organizing Ban.
Intervenors’ argument for abstention here is effectively to say that every vagueness challenge to a state law in federal court is subject to abstention because, by nature of the challenge itself, the statute at issue has ambiguities that could be clarified in the first instance by state courts. Such a broad reading of the abstention doctrine is contrary to the very purpose of the vagueness doctrine. After all, “to
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abstain is to subject those affected to the uncertainties and vagaries of criminal prosecution, whereas the reasons for the vagueness doctrine in the area of expression demand no less than freedom from prosecution prior to a construction adequate to save the statute.” Dombrowski, 380 U.S. at 492. II. The equitable considerations favor granting an injunction.
Intervenors deploy a number of creative, but unsupported, arguments that boil down to an assertion that Plaintiffs should be required to go through this election cycle deprived of their constitutionally guaranteed rights to fully participate in and exercise their speech related to that election. Intervenors are wrong. “[T]he public interest is served by preventing the violation of constitutional rights.” Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004).
This lawsuit—which was filed a full year before the coming November election—is timely; Intervenors’ arguments to the contrary are without merit. First, Intervenors argue that Plaintiffs waited too long to bring the lawsuit because the challenged laws are not newly enacted laws. ECF No. 68 at 41; ECF No. 70 at 55. But, as the Court already found, the laws have taken on a new impact given recent changes to technology and Michigan’s election regime. ECF No. 59 at 22. Even beyond that, Plaintiffs have not sat on their rights. Priorities and Rise both expanded their presence in Michigan in 2019, and, as Intervenors acknowledged, filed this
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lawsuit the very same year. See ECF No. 22-6 ¶ 4; Elgart Decl.. supra, Ex. F. Second, Intervenors argue that it is too close to the November election to issue the requested relief. But the challenged laws do not require any structural changes to the way the state prints or distributes ballots. Furthermore, the motion for injunction is fully briefed and it remains well before the period of time where courts have abstained from injunctions based on timeliness concerns. See, e.g., Bryanton v. Johnson, 902 F. Supp. 2d 983 (E.D. Mich. 2012) (enjoining inclusion of a citizenship verification question on absentee ballot and voter registration applications four weeks before election); U.S. Student Ass’n Found. v. Land, 585 F. Supp. 2d 925 (E.D. Mich. Oct. 13, 2008) (prohibiting cancellation/rejection of voter registrations three weeks before election); Bay Cty. Democratic Party v. Land, 347 F. Supp. 2d 404 (E.D. Mich. 2004) (enjoining rejection of out-of-precinct provisional ballots cast in federal elections two weeks before election); see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) (affirming injunction five weeks before election).
Intervenors also argue that Plaintiffs will not suffer irreparable injury because the Secretary sent absentee ballot applications to voters. While this decision is laudable in that it alleviates the burden on voters to obtain absentee ballot applications, it does not alleviate the burden on Plaintiffs’ expressive activities.
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Plaintiffs are still prohibited from distributing and returning applications, requesting

to do so, and from paying for hired transportation.8

In short, this Court has already held that the Absentee Ballot Organizing Ban

and the Voter Transportation Ban are subject to scrutiny under the First Amendment,

and conflict with federal law. Intervenors offer no persuasive reasons this Court

should reverse course. And the robust evidentiary record filed with the request for

injunction supports a final resolution in Plaintiffs’ favor. Accordingly, Plaintiffs

respectfully urge the Court to enter the requested injunction, ensuring that Plaintiffs’

rights—and the rights of all Michiganders—are protected in advance of the

November Election.

Dated: June 12, 2020

Respectfully submitted,

Kevin J. Hamilton Amanda Beane PERKINS COIE LLP 1201 3rd Ave. Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 359-9741 khamilton@perkinscoie.com

By: /s/ Marc E. Elias Marc E. Elias Christopher J. Bryant Courtney A. Elgart PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211

8 Michigan law criminalizes every violation of the Election Code, Mich. Comp. Laws § 168.931(2), including, obviously, hiring transportation for a voter, id. § 168.931(f), and including a false statement on the certification a third party must fill out to return an absentee ballot application, id. § 168.759(8); see also id. § 168.759(5) (“It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk.”).
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Sarah S. Prescott, Bar No. 70510 SALVATORE PRESCOTT & PORTER, PLLC 105 E. Main Street Northville, MI 48168
Attorneys for Plaintiffs

melias@perkinscoie.com cbryant@perkinscoie.com celgart@perkinscoie.com
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on June 12, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
LOCAL RULE CERTIFICATION I, Marc Elias, certify that this document and complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least oneinch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that I have filed a motion seeking an extension on the word limit contained in Local Rule 7.1 for good cause.
Respectfully submitted,
By: /s/ Marc E. Elias Marc E. Elias PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com
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Case 4:19-cv-13341-SDD-RSW ECF No. 72-1 filed 06/12/20 PageID.1340 Page 1 of 1

Exhibit # A
B C D E F
G
H
I

Index of Exhibits
Description
Declaration of Andrea Hunter in Support of Plaintiffs’ Motion for a Preliminary and Permanent Injunction
Instagram posts created by @apriddetroitdownriver
“ABOUT US” page of APRI’s website
“OUR IMPACT” page of APRI’s website
“HOW WE WORK” page of Rise, Inc.’s website
Press Release, “Priorities USA Launches Priorities Michigan” dated July 18, 2020
Ayesha Rascoe, “In Final Stretch, Groups Work to Get Young People, Minorities to the Polls,” NPR (Nov. 2, 2018)
Miles Parks, “Why is Voting By Mail (Suddenly) Controversial? Here’s What You Need to Know,” NPR (June 4, 2020)
“Dirty Tricks: Eight Falsehoods that Could Undermine the 2020 Election,” Brennan Center (May 14, 2020)

Case 4:19-cv-13341-SDD-RSW ECF No. 72-2 filed 06/12/20 PageID.1341 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,
v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and
Republican National Committee, Michigan Republican Party, Michigan House of Representatives, and Michigan Senate,
Intervenor- Defendants.

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS
MAGISTRATE JUDGE R. STEVEN WHALEN
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR A
PRELIMINARY AND PERMANENT INJUNCTION

I, Courtney A. Elgart, declare as follows: 1. I am over the age of 18 and am competent to make this declaration. I am an attorney with the law firm of Perkins Coie, LLP and am admitted to practice law in the District of Columbia, Massachusetts, and the Eastern District of Michigan. I am an attorney for Plaintiffs. I submit this declaration to provide the Court true and correct copies of certain documents submitted in connection with Plaintiffs’ Motion for Preliminary and Permeant Injunction.

Case 4:19-cv-13341-SDD-RSW ECF No. 72-2 filed 06/12/20 PageID.1342 Page 2 of 3

2. Exhibit A is a true and correct copy of the declaration of Andrea Hunter

dated June 12, 2020.

3. Exhibit B is a true and correct copy of Instagram posts created by

@apriddetroitdownriver,

available

at

https://www.instagram.com/apridetroitdownriver/ (accessed June 11, 2020).

4. Exhibit C is a true and correct copy of the “ABOUT US” page of

APRI’s website, available at http://www.apridetroitdownriver.org/about-us

(accessed June 11, 2020).

5. Exhibit D is a true and correct copy of the “OUR IMPACT” page of

APRI’s website, available at http://www.apridetroitdownriver.org/our-impact

(accessed June 11, 2020).

6. Exhibit E is a true and correct copy of the “HOW WE WORK” page of

Rise, Inc.’s website, available at https://risefree.org/how-we-work/ (accessed June

11, 2020).

7. Exhibit F is a true and correct copy of the Press Release, “Priorities

USA Launches Priorities Michigan” dated July 18, 2020, available at

https://priorities.org/press/priorities-usa-launches-priorities-michigan/ (accessed

June 11, 2020).

8. Exhibit G is a true and correct copy of Ayesha Rascoe, “In Final

Stretch, Groups Work to Get Young People, Minorities to the Polls,” NPR (Nov. 2,

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2018), available at https://www.npr.org/2018/11/02/662273990/in-final-stretchgroups-work-to-get-young-people-minorities-to-the-polls (accessed June 11, 2020).
9. Exhibit H is a true and correct copy of Miles Parks, “Why is Voting By Mail (Suddenly) Controversial? Here’s What You Need to Know,” NPR (June 4, 2020), available at https://www.npr.org/2020/06/04/864899178/why-is-voting-bymail-suddenly-controversial-heres-what-you-need-to-know (accessed June 11, 2020).
10. Exhibit I is a true and correct copy of Max Feldman, “Dirty Tricks: Eight Falsehoods that Could Undermine the 2020 Election,” Brennan Center (May 14, 2020), available at https://www.brennancenter.org/our-work/researchreports/dirty-tricks-eight-falsehoods-could-undermine-2020-election (accessed June 11, 2020).
I certify under penalty of perjury and pursuant to the laws of the United States that the preceding is true and correct.

Executed on 6/12/20

By: ____________________________ Courtney A. Elgart

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-3 filed 06/12/20 PageID.1344 Page 1 of 5
Exhibit A

Case 4:19-cv-13341-SDD-RSW ECF No. 72-3 filed 06/12/20 PageID.1345 Page 2 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Priorities USA, Rise, Inc., and the Detroit/Downriver Chapter of the A. Philip Randolph Institute,
Plaintiffs,

NO. 19-13341
JUDGE STEPHANIE DAWKINS DAVIS

v.
Dana Nessel, in her official capacity as Attorney General of the State of Michigan,
Defendant,
and

MAGISTRATE JUDGE R. STEVEN WHALEN
DECLARATION OF ANDREA HUNTER IN SUPPORT OF
PLAINTIFFS’ MOTION FOR A PRELIMINARY AND
PERMANENT INJUNCTION

Republican National Committee, Michigan Republican Party, Michigan House of Representatives, and Michigan Senate,

Intervenor- Defendants.

I, Andrea Hunter, declare as follows: 1. My name is Andrea Hunter. I am currently the President of the A. Philip Randolph Institute’s Detroit/Downriver Chapter, as well as President of United Steelworkers Local 1299. 2. The A. Philip Randolph Institute (APRI) is the senior constituency group of the AFL-CIO. APRI was founded in 1965 by A. Philip Randolph and

Case 4:19-cv-13341-SDD-RSW ECF No. 72-3 filed 06/12/20 PageID.1346 Page 3 of 5
Bayard Rustin to fight for human equality and economic justice and to seek structural changes through the American democratic process. The Detroit/Downriver Chapter of APRI serves the Downriver and Detroit areas of Michigan.
3. The Detroit/Downriver Chapter of APRI formed in June 2012 and now has 78 members, the majority of whom are people of color, who typically meet on a monthly basis. Its Executive Board, which voted to join this litigation, is made up of 9 members.
4. When APRI members conduct voter engagement work, we are not only facilitating individuals’ access to the ballot, but also expressing to people in our community that voting is an important way to make positive change. Since the Detroit/Downriver Chapter of APRI formed eight years ago, we have built a reputation for spreading the message of encouraging civic participation. When we provide rides to the polls or assistance with absentee voting, we intend to convey that voting is important to us and that it should be to our community as well.
5. Part of APRI’s mission is to turn out voters across Detroit and Downriver, especially voters who may not vote without APRI’s assistance. Therefore, APRI regularly works with and advocates for the needs of individuals with disabilities and individuals with limited English proficiency. Because APRI is
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Case 4:19-cv-13341-SDD-RSW ECF No. 72-3 filed 06/12/20 PageID.1347 Page 4 of 5
well known and has roots in the community, voters trust APRI to provide assistance with voting, and the same voters return to seek assistance from year to year.
6. Some of APRI’s members themselves have disabilities and rely on APRI for assistance in voting. One of our dues-paying members, Cameron Randolph, is autistic and depends on APRI to take him to and from the polls. He is not able to catch the bus because he gets disorientated, cannot drive due to his disabilities, and has trouble navigating ride-share apps. He cannot vote absentee because he would need assistance from APRI to request a ballot. APRI brings this lawsuit on behalf of Mr. Randolph and all of our dues-paying members with disabilities who rely on APRI for assistance with voting.
7. We also have relationships with individuals outside our membership who have disabilities. Many of them cannot get themselves to the polls to vote in person because they are physically unable to drive themselves or because they do not have convenient access to public transportation. Therefore, they rely on APRI for rides to the polls. They would rely on APRI for assistance with requesting an absentee ballot if such assistance were legal.
8. APRI also provides ongoing assistance to individuals with limited English proficiency in the large Spanish- and Arabic- speaking populations in our community. With regard to voting specifically, these individuals face significant barriers that we attempt to break down by offering information about voting in their
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Case 4:19-cv-13341-SDD-RSW ECF No. 72-3 filed 06/12/20 PageID.1348 Page 5 of 5
native languages—through voter education campaigns, voter registration efforts, traditional get-out-the-vote activities like phone banking and knocking on doors, and connecting voters to translation services at the polls on Election Day.
9. Due to APRI’s existing relationships with individual voters in the community, many of whom have limited English proficiency or have disabilities, such individuals rely on APRI to advocate for their needs, connect them to relevant services, and facilitate their civic participation. It is based on these relationships, in addition to protecting its ability to continue its work, that APRI brings this lawsuit.
10. Many of the voters that APRI serves are some of the most vulnerable individuals in the community, and they suffer disproportionately from limited financial resources and time as well as low levels of English literacy and education. Because of these challenges, they face practical obstacles to bringing lawsuits on their own and rely on APRI to advocate for their interests.
I certify under penalty of perjury and pursuant to the laws of the United States that the preceding is true and correct. Executed on June ____, 2020.
By: _____________________________________ Andrea Hunter/President Detroit/Downriver A. Philip Randolph Institute
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Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1349 Page 1 of 16
Exhibit B

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1350 Page 2 of 16

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1351 Page 3 of 16 - 2 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1352 Page 4 of 16 - 3 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1353 Page 5 of 16 - 4 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1354 Page 6 of 16 - 5 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1355 Page 7 of 16 - 6 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1356 Page 8 of 16 - 7 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1357 Page 9 of 16 - 8 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1358 Page 10 of 16 - 9 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1359 Page 11 of 16 - 10 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1360 Page 12 of 16 - 11 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1361 Page 13 of 16 - 12 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1362 Page 14 of 16 - 13 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1363 Page 15 of 16 - 14 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-4 filed 06/12/20 PageID.1364 Page 16 of 16 - 15 -

Case 4:19-cv-13341-SDD-RSW ECF No. 72-5 filed 06/12/20 PageID.1365 Page 1 of 8
Exhibit C

6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1366 Page 2 of 8
"Freedom is never given; it is won."
A. PHILIP RANDOLPH | CO-FOUNDER

www.apridetroitdownriver.org/about-us

1/7

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MISSION
The mission of A. Philip Randolph Institute is to continue to fight for Human Equality and Economic Justice, and to seek structural changes through the American Democratic process. Our members are involved in voter registration, political and community education, lobbying, legislative action and labor support activities.

GOALS
Our goal is to enhance the participation of the members of our community in society as a whole through education and comradery.

01. –
Educati ng our commu nity on the differe nt politica l, social, human, econo

02. –
Providi ng job skill set for employ ment of ALL membe rs of our commu nity. Ex-

03. –
Providi ng food, clothin g and nutritio n educati on for those in need.

04. –
Throug h teachin g selfworth by assistin g someo ne with employ ment

www.apridetroitdownriver.org/about-us

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6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1368 Page 4 of 8

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3/7

6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1369 Page 5 of 8
“The truth that one
truly believes in is action.”
BAYARD RUSTIN | CO-FOUNDER

www.apridetroitdownriver.org/about-us

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6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1370 Page 6 of 8

HISTORY
The A. Philip Randolph Institute (APRI) was established by co-founders A. Philip Randolph and Bayard Rustin in 1965 shortly after the signing of the Voter Rights Act 1965. APRI is the senior constituency group of the AFL-CIO and host over 100 chapters throughout the United States. Once deemed by the FBI as the most dangerous black man in America, A. Philip Randolph is credited with organizing and initiating the 1964 March on Washington for Jobs and Freedom, one of the most iconic and largest political rallies for human rights in United States history.

LEARN MORE ABOUT A. PHILIP RANDOLPH

LEARN MORE ABOUT BAYARD RUSTIN

READY TO HELP?

www.apridetroitdownriver.org/about-us

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6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1371 Page 7 of 8
Membership
JOIN TODAY
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Donate
DONATE TODAY

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BE IN THE KNOW
Sign up with your email address to receive news and
updates.

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6/11/2020Case 4:19-cv-13341-SDD-RSW AEboCutFUsN—oD. e7tr2oi-t/5Dowfnirlievedr A0. 6Ph/1ilip2R/2an0dolphPInasgtiteutIeD.1372 Page 8 of 8 First Name Last Name Email Address SIGN UP
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All images Copyright A. Philip Randolph Institute Detroit/Downriver Chapter.

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-6 filed 06/12/20 PageID.1373 Page 1 of 6
Exhibit D

6/11/2020Case 4:19-cv-13341-SDD-RSW OuEr CImFpacNt —o.D7et2ro-i6t/Dowfinlreivder 0A.6P/h1il2ip/R2a0ndolpPh aIngsteituItDe .1374 Page 2 of 6

"The FUTURE is CREATED by what
you do TODAY,
not

www.apridetroitdownriver.org/our-impact

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6/11/2020Case 4:19-cv-13341-SDD-RSW OuEr CImFpacNt —o.D7et2ro-i6t/Dowfinlreivder 0A.6P/h1il2ip/R2a0ndolpPh aIngsteituItDe .1375 Page 3 of 6
tomorrow."

WHAT WE DO...

The Detroit/Downriver Chapter has established a close relationship with those in our communities. We feed, clothe and educate those in our neighborhoods; because we are well aware if an individuals basic needs are not met, how can they even think about engaging in their community. Through our Detroit/Downriver APRI Youth Chapter we educate, guide and nurture future community leaders. Our chapter’s GOTV initiatives enhances community involvement by mobilizing, motivating and educating our citizens on issues which affect

www.apridetroitdownriver.org/our-impact

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6/11/2020Case 4:19-cv-13341-SDD-RSW OuEr CImFpacNt —o.D7et2ro-i6t/Dowfinlreivder 0A.6P/h1il2ip/R2a0ndolpPh aIngsteituItDe .1376 Page 4 of 6 them politically, socially, economically and historically.

"Salvation for a race, nation or class must come from within."

A. PHILIP RANDOLPH | CO-FOUNDER

www.apridetroitdownriver.org/our-impact

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DONATIONS ARE ALWAYS NEEDED AND APPRECIATED...
Donations go towards our many community endeavors. Our Project R.O.C.K (Rebuilding Our Communities KickOff) Program is a program where we feed and clothe the community. Project R.O.C.K also assists children out of Foster care going into adulthood, ex-felons, domestic violence victims etc. with employment interview skills, attire and grooming needs for a job interview.
Funds are also utilized for GOTV, literature, gas, and refreshments for community education and development.


www.apridetroitdownriver.org/our-impact


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FOLLOW US ON INSTAGRAM: @APRIDETROITDOWNRIVER

BE IN THE KNOW
Sign up with your email address to receive news and
updates.

First Name Last Name Email Address

SIGN UP
We respect your privacy.

NATIONAL HEADQUARTERS FAQ TERMS OF SERVICE MEMBERSHIP DONATE CONTACT US
All images Copyright A. Philip Randolph Institute Detroit/Downriver Chapter.

www.apridetroitdownriver.org/our-impact

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-7 filed 06/12/20 PageID.1379 Page 1 of 5
Exhibit E

6/11/2020Case 4:19-cv-13341-SDD-RSW ECFOuNr Fore.e7C2o-ll7ege Pfillaend- H0o6w/W1e2W/2o0rk - RPiseageID.1380 Page 2 of 5

HOW WE WORK

Rise builds student-led advocacy campaigns for policies that put higher education within reach for all. We also convene and train student leaders to advocate for college affordability policies through our Camp Rise series—a day-long training summit for college student leaders. Our north star goal is restoring state and federal funding for public higher education to make public colleges and universities free for all students. That means:
 Free tuition and fees to expand access to public higher education.
 Financial aid and campus resources to ensure students’ basic needs are met while in college.
Support to thrive in college and graduate on time with little or no debt.

https://risefree.org/how-we-work/

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6/11/2020Case 4:19-cv-13341-SDD-RSW ECFOuNr Fore.e7C2o-ll7ege Pfillaend- H0o6w/W1e2W/2o0rk - RPiseageID.1381 Page 3 of 5 Rise campaigns are led by our (paid) Student Organizing Fellows, campus partners, and community of supporters. Our past and current campaigns include: Past: ✅ 1 Year of Free Community College for First-time, Full-time Students in California ✅ Stop California State University and University of California Tuition Hikes and Win Hundreds of Millions of Dollars in New State Funding for Students in 2018 ✅ Mobilize Thousands of Student Voters in November, 2018 ✅ Two Years of Free Community College for First-Time, Full-Time Students Current: ➡ Two Years of Free Community College, and Michigan Reconnect Program ➡ California Financial Aid Reform and Expansion ➡ LA2050: Ending College Student Hunger and Homelessness Through Student Advocacy

https://risefree.org/how-we-work/

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SUPPORT RISE TODAY
Students’ advocacy depends on supports like you stepping up to power this movement.
Donate to Rise to support our students today.

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DONATE NOW 

https://risefree.org/how-we-work/

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-8 filed 06/12/20 PageID.1384 Page 1 of 4
Exhibit F

6/11/2020Case 4:19-cv-13341-SDD-RSW PrEioCritieFs NUSoA.L7au2n-c8hes Pfirlieorditie0s 6M/ic1h2ig/a2n0- PrioPritiaesgUeSIAD.1385 Page 2 of 4

July 18, 2019 | Press Release
Priorities USA Launches Priorities Michigan

Today, Priorities USA is launching Priorities Michigan, one of the four entities in its new battleground state communications program. The program, which will combine press and digital communications operations to push back against Trump’s false narratives, comes as part of Priorities USA’s previously announced $100 million investment in key states including Florida, Michigan, Pennsylvania, and Wisconsin.
The in-state Michigan team will work with local organizations to collect and capture stories from people and families who have felt the negative impact of living under Trump’s economy. The team will distribute content to voters on the platforms where they get their news and information. This will include creating original content for social media and amplifying stories and data across local media outlets. Work on the ground will also support and inform Priorities’ national work and paid media program, informing messaging and creative.
“Trump may try to brag about how the economy’s great and everyone’s prospering, but here in Michigan, voters know that couldn’t be further from the truth. The reality is Michigan workers are losing their jobs, health care costs are rising, and paying the monthly bills is a challenge,” said Guy Cecil, Chairman of Priorities USA.“Trump has shown time and time again that he’s not looking out for Michigan families. He’s only looking out for corporate proﬁts; his tax break for auto manufacturers that turn around and lay off their workers is only one example. Michigan will be a crucial state in 2020, and our team will be on the front lines telling the real stories caused by Trump’s policies, not Trump’s lies.”
Trump’s broken promises are hurting Michigan workers.
Since taking oﬃce, Trump promised that he’d bring auto industry jobs back, but General Motors has laid off over 2,000 Michigan auto workers in the past year despite getting a $157 million tax break from Trump’s policies.
Over a quarter of Michigan households aren’t able to afford basic necessities, and Trump’s economic plans are only making matters worse.

https://priorities.org/press/priorities-usa-launches-priorities-michigan/

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Trump’s sabotage of the Affordable Care Act has caused health care premiums to increase by nearly $1,600, while also endangering health care coverage for as many as 4.1 million Michiganders.
Priorities Michigan’s growing team will include:
Zack Smith, serving as Content Producer. Zack will collect personal stories about the harmful impacts of Trump’s policies and work with local partners to reach voters with these stories. Before joining Priorities, Zack was a Communications Organizer with For Our Future Michigan, and prior to that, he worked as an adjunct professor at several Michigan colleges and prisons. He got his start in politics on the 2008 Obama campaign as a ﬁeld organizer.
This program comes as part of Priorities USA’s transition into the 2020 presidential cycle. This also includes a new program to provide partners with in-depth modeling, targeting, and opinion research for digital, TV, mail and ﬁeld programs; continued efforts to train progressive operatives in understanding, planning, and executing digital campaigns; as well as a strong focus on both persuading moveable voters and mobilizing the Democratic base.

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Home About Mission News Press Jobs Donate

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For questions about Priorities USA, please email info@priorities.org. For press inquiries, please email press@priorities.org. To subscribe to the press list, click here.

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6/11/2020Case 4:19-cv-13341-SDD-RSW PrEioCritieFs NUSoA.L7au2n-c8hes Pfirlieorditie0s 6M/ic1h2ig/a2n0- PrioPritiaesgUeSIAD.1387 Page 4 of 4 Copyright 2020 - Priorities USA - All Rights Reserved. Privacy Policy
Paid for by Priorities USA. Site by Wide Eye Creative

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-9 filed 06/12/20 PageID.1388 Page 1 of 6
Exhibit G

6/11/2020Case 4:19-cv-13341-SDGDro-uRpsSWWork ToEGCetFYoNunog.P7eo2p-le9, Minfiolreitides0To6T/1he2P/2oll0s BefoPrea2g0e18IDEl.e1ct3io8n 9: NPRPage 2 of 6
H O U R LYWNBEEWZSChicago LISTEN OLnIVAEir Now PLAYLIST
DONATE
ELECTIONS
In Final Stretch, Groups Work To Get Young People, Minorities To The Polls
November 2, 2018 · 5:00 AM ET
AYESHA RASCOE

Georgia voters and supporters dance and sing during a "Souls to The Polls" march hosted by Democratic Georgia gubernatorial candidate Stacey Abrams in downtown Atlanta on Oct. 28. Alongside artist Common and Ambassador Andrew Young, Abrams marched with voters to a polling station in downtown Atlanta.
Jessica McGowan/Getty Images

Updated at 12:30 p.m. ET

In the final days ahead of potentially pivotal midterm elections, activists are working to get voters to the polls who ordinarily might not show up when the presidency doesn't hang in the balance.

https://www.npr.org/2018/11/02/662273990/in-final-stretch-groups-work-to-get-young-people-minorities-to-the-polls

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6/11/2020Case 4:19-cv-13341-SDGDro-uRpsSWWork ToEGCetFYoNunog.P7eo2p-le9, Minfiolreitides0To6T/1he2P/2oll0s BefoPrea2g0e18IDEl.e1ct3io9n 0: NPRPage 3 of 6 Donors have poured millions of dollars into efforts to turn out more AfricanAmericans, Hispanics and young people for the 2018 elections.
With early voting under way in many states, there are signs that these efforts may be paying off.
POLITICS Trump Denies 'Fearmongering' With Immigration Rhetoric Ahead Of The Election

"We're seeing indications that younger people, persons of color are voting at higher rates relative to 2014," said Michael McDonald, a political science professor at the University of Florida.
McDonald pointed to the race for Georgia governor as an example. He said the campaign for Democratic candidate Stacey Abrams had focused heavily on getting African-Americans and other likely supporters to vote early by mail.
"We could actually see that African-Americans were making up an unusually large proportion of the mail ballots in Georgia," McDonald said.
POLITICS Jimmy Carter Calls For Georgia Secretary Of State's Resignation In Personal Plea

As of Thursday, at least 20 states have already surpassed their vote totals for the entire early voting period in 2014, according to McDonald.
Billy Wimsatt is the executive director of Movement Voter Project, an organization that allows donors to support local groups focused on increasing voting among young people and in communities of color year-round.
Groups that know their communities intimately can make a big difference in motivating people who usually don't vote to get to the polls, according to Wimsatt.

https://www.npr.org/2018/11/02/662273990/in-final-stretch-groups-work-to-get-young-people-minorities-to-the-polls

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6/11/2020Case 4:19-cv-13341-SDGDro-uRpsSWWork ToEGCetFYoNunog.P7eo2p-le9, Minfiolreitides0To6T/1he2P/2oll0s BefoPrea2g0e18IDEl.e1ct3io9n 1: NPRPage 4 of 6 "They just need to hear from someone they trust or someone locally who's going to help them close the deal," Wimsatt said.
The project has provided more than $10 million to more than 300 groups in 40 states ahead of the midterms this year.
As the election nears, Wimsatt said the project is focused on filling budget gaps for these local groups during this critical period: paying for more canvassers and vans to transport people and other things needed during the final push to get out the vote.
"You can scale that up really fast ... $10,000 could pay for 50 additional people getting out the vote in a community," he said.
Voter turnout usually drops off in non-presidential election years, and that drop off is even more steep among minorities and young voters.
POLITICS Another 'Civil War?' Pessimism About Political Violence Deepens In A Divided Nation
But this year, activists argue that President Trump's polarizing policies and rhetoric are energizing people who might not normally vote.
"There really is a different sense of urgency and a different sense of what's at stake," said Adrianne Shropshire, executive director of BlackPAC, which works to mobilize African-American voters. "People understand the country to be in crisis right now. And their response is to say I'm going to participate."

https://www.npr.org/2018/11/02/662273990/in-final-stretch-groups-work-to-get-young-people-minorities-to-the-polls

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Democratic Georgia gubernatorial candidate Stacey Abrams and Grammy-winning artist Common lead voters during a "Souls to The Polls" march in downtown Atlanta on Oc. 28. The march went from Underground Atlanta to the Fulton County Government Center polling station open for early voting.
Jessica McGowan/Getty Images
BlackPAC is spending about $8 million in 10 states on radio and mail ads. Its affiliated social welfare organization, Black Progressive Action Coalition (BPAC), is spending an additional $6 million on a nonpartisan field program, with at least 1,500 canvassers.
The push to improve turnout comes as concerns about voter suppression are rampant in states like Georgia, where tens of thousands of voters have been purged from voter rolls and voting rights lawsuits have been filed.
ELECTIONS Republican Voter Suppression Efforts Are Targeting Minorities, Journalist Says
Shropshire says reports of voter suppression are making some people more determined to vote.

https://www.npr.org/2018/11/02/662273990/in-final-stretch-groups-work-to-get-young-people-minorities-to-the-polls

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6/11/2020Case 4:19-cv-13341-SDGDro-uRpsSWWork ToEGCetFYoNunog.P7eo2p-le9, Minfiolreitides0To6T/1he2P/2oll0s BefoPrea2g0e18IDEl.e1ct3io9n 3: NPRPage 6 of 6 "People are angry at the thought that in 2018 there are forces that are still trying to disenfranchise black communities," she said. "The challenge is that people need information ... about what to do if they are somehow being blocked from voting."
POLITICS Voter Turnout Could Hit 50-Year Record For Midterm Elections
Ultimately, the final verdict on turnout will be rendered on Election Day. But, McDonald said the high levels of early voting, when taken together with other information gleaned from special elections and polling, seem to point to an increase in voting overall.
"All the information that's available to us points to an exceptionally high turnout midterm election, at least in modern history," he said.

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2020 Election: Secure Your Vote

Why Is Voting By Mail (Suddenly) Controversial? Here's What You Need To Know
June 4, 2020 · 5:00 AM ET
MILES PARKS

An election worker sorts vote-by-mail ballots for Washington state's presidential primary on March 10 in Renton, a suburb of Seattle.
Jason Redmond/AFP via Getty Images

Casting a ballot by mail isn't a new way to vote, but it is getting fresh attention as the coronavirus pandemic upends daily life.

The voting method is quickly becoming the norm and quickly becoming politically charged as some Republicans — specifically President Trump — fight against the mail-

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6/11/202C0ase 4:19-cv-13341-SDD-RSWVote BEyCMFail:NBaoll.ot7F2ra-u1d0Riskf,iSletadte 0La6w/s1A2n/d2T0rumpP's aClgaiemIsD: N.1P3R96 Page 3 of 11 voting expansion happening nationwide.
Here are answers to key questions about mail ballots and the controversy around them.
What is mail voting?
Which states are offering mail voting?
What do Americans think?
What is the argument against it?
What are the facts on fraud?
Is nationwide mail voting possible?
What is mail voting?
The phrases "mail voting" and "voting by mail" encompass a wide range of policies, all meant to offer more flexibility to voters who either want or need to cast a ballot in a location other than a polling place.
2020 ELECTION: SECURE YOUR VOTE Primary Election Snafus Show Challenges For November Vote

The practice dates back to the Civil War, according to the Massachusetts Institute of Technology's Election Data Lab, when soldiers were given the opportunity to vote from the battlefield. States began expanding absentee voting laws in the late 1800s to accommodate voters who were away from home or sick on Election Day.

Currently, all states allow at least a portion of their voting population to vote by mail.

Some states allow all registered voters to receive a mail ballot (also known as an absentee ballot), and some states require an excuse or reason. Policies vary widely state by state as well as on what is required to have a mail ballot counted; some states

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How many states are offering access to mail voting during the pandemic? Almost all of them. Forty-six states now offer access to some form of mail voting to all voters, according to a recent report from the nonprofit Open Source Election Technology Institute. Overall, that expansion has been bipartisan; 24 of the states have Democratic governors, and 22 have Republican governors. But the limited pushback to the mail-voting expansion has come almost exclusively from Republicans.
THE CORONAVIRUS CRISIS States Expand Internet Voting Experiments Amid Pandemic, Raising Security Fears
2020 ELECTION: SECURE YOUR VOTE Feds Warn States That Online Voting Experiments Are 'High-Risk'
All four states that have not expanded mail-voting access are led by Republican governors, according to the Open Source Election Technology Institute report. Texas, for instance, is one of the four states that hasn't expanded access to mail ballots in response to the pandemic, and Republicans there are engaged in high-profile court battles to keep it that way. Texas Attorney General Ken Paxton has said in statements that "fear of contracting COVID-19 does not amount to a sickness or physical condition as required by state law." He also said that his office would prosecute people for voter fraud if they use a mail-in ballot in a matter he said is improper.

https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know

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6/11/202C0ase 4:19-cv-13341-SDD-RSWVote BEyCMFail:NBaoll.ot7F2ra-u1d0Riskf,iSletadte 0La6w/s1A2n/d2T0rumpP's aClgaiemIsD: N.1P3R98 Page 5 of 11 only require a voter's signature, whereas others require witness signatures or the notarization of a ballot return envelope.
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6/11/202C0ase 4:19-cv-13341-SDD-RSWVote BEyCMFail:NBaoll.ot7F2ra-u1d0Riskf,iSletadte 0La6w/s1A2n/d2T0rumpP's aClgaiemIsD: N.1P3R99 Page 6 of 11 Most other state-level Republicans have embraced mail-voting expansions however, including in a number of states such as Georgia and Iowa, which mailed all registered voters absentee ballot request forms ahead of their June primaries.
Overall, experts estimate as many as 70% of all ballots cast in November's general election could be cast by mail.
How do Americans feel about mail voting?
Overall, even before the pandemic sent election officials scrambling to make sure people could vote safely, mail voting has been on the rise in the United States.
About a quarter of all voters voted by mail in the 2018 midterms, more than double the rate of mail voting from 20 years ago. Much of that increase comes from the handful of states transitioning to all-mail elections in recent years.

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Nearly 1 In 4 Votes Was Cast By Mail In 2018

Although early voting tends to see a jump during presidential election years, voting by mail has seen a steady increase as a share of all voting in general elections since 1996.

By mail

Early voting

Election Day

100%

90%

80%

70%

60%

Election Day: 59.6%

50%

40%

30%
By mail: 23.1% 20%
Early voting: 16.1%
10%

0% 1996

1998

2000

Source: U.S. Census Bureau Credit: Thomas Wilburn/NPR

2002

2004

2006

2008

2010

2012

2014

2016

2018

Nationwide, the attitude toward mail ballots is also decisively positive. A recent Pew Research Center poll found that more than 70% of Americans think any voter who wants to vote by mail should be able to do so.

That includes 49% of Republicans. GOP support jumps to almost 70% in states where a sizable amount of the population already votes by mail. This seems to indicate that as voters become familiar with how mail voting works, they become more likely to support it.

The opposition to mail voting is anchored by Republicans in states that don't offer wide access to mail voting already.

https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know

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6/11/202C0ase 4:19-cv-13341-SDD-RSWVote BEyCMFail:NBaoll.ot7F2ra-u1d0Riskf,iSletadte 0La6w/s1A2n/d2T0rumpP's aClgaiemIsD: N.1P4R01 Page 8 of 11 What have President Trump and Republicans in Congress said about mail voting?
The president has made it clear that despite voting by mail himself multiple times, he does not support wide expansion of the practice.
He has tweeted a number of false claims about what states are doing, including saying it was illegal for the secretary of state of Michigan to mail all registered voters in that state ballot request forms, and misrepresenting California's decision to mail all registered voters ballots.
Notably, Twitter decided to weigh in by adding a "fact check" label to his tweet about California's decision.
2020 ELECTION: SECURE YOUR VOTE 'It's Partly On Me': GOP Official Says Fraud Warnings Hamper Vote-By-Mail Push

Trump says voters should be required to have a reason for voting absentee, otherwise the election process will become "substantially fraudulent." He and his staff point to a number of isolated incidents of fraud but have never provided the data needed to prove the point. Election experts say the claim is false.
Trump has also indicated he thinks expanding mail balloting would be bad politically for the Republican Party, although research disputes this notion as well. A recent study from Stanford University found no partisan effect of implementing universal mail voting.
Many Republicans in Congress, meanwhile, are focused on how mail ballots are returned. They don't want people to be able to return ballots for others.
Generally, Democrats see the practice as helpful for vulnerable populations; one person turning in all the ballots for a nursing home or housing complex for instance. But what Democrats call "community ballot collection," Republicans deride as "ballot

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6/11/202C0ase 4:19-cv-13341-SDD-RSWVote BEyCMFail:NBaoll.ot7F2ra-u1d0Riskf,iSletadte 0La6w/s1A2n/d2T0rumpP's aClgaiemIsD: N.1P4R02 Page 9 of 11 harvesting," and say it opens up those same vulnerable populations to manipulation and vote coercion.
THE CORONAVIRUS CRISIS Need A Witness For Your Mail-In Ballot? New Pandemic Lawsuits Challenge Old Rules
"These harvesters picking up ballots don't have to show an ID, they don't have to be a citizen, and they don't have to be eligible to vote," U.S. Rep. Rodney Davis, R-Ill., ranking member of the Committee on House Administration, wrote in a recent op-ed. "You expect Americans to believe that having someone who can't vote picking up ballots won't invite fraud in our elections?"
Democrats, however, are suing to allow to allow third-party collection in a number of states, including battlegrounds such as Pennsylvania and North Carolina.
What does the data say about fraud when it comes to mail ballots?
While election experts say fraud in mail balloting is slightly more common than in inperson voting, it's still such a minuscule amount it's not statistically meaningful.
Amber McReynolds, a former Colorado election official and now the CEO of the National Vote at Home Institute, and Charles Stewart, director of the MIT Election Data and Science Lab, recently put the numbers in context in an op-ed in The Hill titled "Let's put the vote-by-mail 'fraud' myth to rest."
Over the past 20 years, they write, more than 250 million ballots have been cast by mail nationwide, while there have been just 143 criminal convictions for election fraud related to mail ballots. That averages out to about one case per state every six or seven years, or a fraud rate of 0.00006%.
POLITICS Voting By Mail Is On The Rise, But Could Alleged N.C. Election Fraud Change That?

https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know

8/20

6/11/2020Case 4:19-cv-13341-SDD-RSVWote ByEMCaiFl: BNalolot.F7ra2u-d1R0isk, fSitlaetedL0aw6s/A1n2d/T2r0ump'sPCalagimesI:DN.P1R403 Page 10 of "Expanding voting by mail will be a challenge i1n1most states in 2020," they write. "But we reiterate: There is no evidence that mail-balloting results in rampant voter fraud, nor that election officials lack the knowledge about how to protect against abuses."
There's also no evidence of the sort of mail-voting interference that U.S. Attorney General William Barr mentioned in a recent New York Times Magazine interview.
Barr alluded to foreign countries being able to "easily make counterfeit ballots, put names on them, send them in," although election officials and experts immediately debunked that assertion.
Jennifer Morrell, an elections consultant and former local elections official in Utah and Colorado, told NPR that for such a plot to work just for a single ballot, an adversary would need to mimic everything perfectly from the ballot's size, style and even paper weight to the envelope it's mailed in — all of which often changes every election cycle and which is different from county to county.
THE CORONAVIRUS CRISIS Social Media Usage Is At An All-Time High. That Could Mean A Nightmare For Democracy
"Ballots are built unique for each election. Each jurisdiction will normally have dozens to hundreds of unique ballot styles. Proofs for each ballot style are reviewed and tested to ensure the ballot scanners will read those ballots and only those ballots," Morrell said. "Even ballots created on that system from a previous election cannot be read."
In all, Morrell listed dozens of unique aspects that the adversary would have to copy perfectly in addition to lining it up with an actual voter in a registration system and faking a signature that aligns with the signature on file for the voter.
"You would need to replicate all of these elements exactly and do it for the 10,000-plus jurisdictions, and hundreds of thousands of unique ballot styles within the U.S.," she said.

https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know

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6/11/2020Case 4:19-cv-13341-SDD-RSVWote ByEMCaiFl: BNalolot.F7ra2u-d1R0isk, fSitlaetedL0aw6s/A1n2d/T2r0ump'sPCalagimesI:DN.P1R404 Page 11 of Or as Colorado elections director Judd Choate 1p1ut it to The Washington Post: "It's preposterous to the point of humor."
Is it feasible for the entire country to vote by mail in November?
This idea is popular with some Democrats in Congress, including Sens. Ron Wyden and Amy Klobuchar, who introduced the Natural Disaster and Emergency Ballot Act earlier this year. The bill would drastically expand mail-voting access to all U.S. voters and reimburse local election officials for the multibillion-dollar cost of providing that access.
But it's unlikely to pass as Republicans in Congress are resistant to any measures that regulate elections from the federal level; they insist that states and localities should govern their own democratic processes.
ELECTIONS Ballot Printers Increase Capacity To Prepare For Mail Voting Surge
Election experts are also skeptical that states, especially ones used to only mailing and receiving a small number of mail ballots, could effectively scale up their operations in time for November. Such changes usually take states years, if not decades.
The private companies tasked with printing the ballots could also be overwhelmed at the rapid increase in demand.
"Decision-making needs to be right now," said Kevin Runbeck, CEO of Runbeck Election Services, one of the nation's largest ballot printing companies, at a recent U.S. Election Assistance Commission hearing. "We cannot gear up, we cannot build equipment fast enough if you wait until July to place your orders."
mail voting

https://www.npr.org/2020/06/04/864899178/why-is-voting-by-mail-suddenly-controversial-heres-what-you-need-to-know

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Case 4:19-cv-13341-SDD-RSW ECF No. 72-11 filed 06/12/20 PageID.1405 Page 1 of 10
Exhibit I

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Tell Congress: Protect the 2020 Election from Covid-19
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Home // Our Work // Research & Reports // Dirty Tricks: Eight Falsehoods that Could Undermine the 2020 Election

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REPORT
Dirty Tricks: Eight Falsehoods that Could Undermine the 2020 Election
T RU T H M AT T E R S : Fake election crises can undercut trust in the vote, in ame partisan tensions, and destabilize our democracy.

Max Feldman

PUBLISHED: May 14, 2020

Doug Chayka

The 2020 election will be hard-fought and divisive. The Covid-19 pandemic has already caused major disruptions to our elections system, and the risk that other real crises — natural disaster, machine breakdown, foreign interference — will further disrupt the election is signi cant. But there is also a signi cant risk that political actors will manufacture crises to undermine election results they don't like. These fake crises can undercut trust in the accuracy of election outcomes, in ame partisan tensions, and destabilize our democracy.
Here are eight lies, misconceptions, and false arguments that we think voters will have to contend with in 2020:

1. “Voter Fraud” Is Rampant

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The Claim: There is widespread voting by ineligible individuals.
The Truth: This type of fraud is extremely rare.
Based on a meticulous review of elections that had been investigated for voter fraud, the Brennan Center found miniscule incident rates of ineligible individuals fraudulently casting ballots at the polls – no more than 0.0025 percent. Numerous reports have con rmed our nding that voter fraud is exceedingly rare. Research shows that voter fraud is similarly rare with mail ballots.
An exhaustive review by Professor Justin Levitt of Loyola Law School found just 31 credible instances of impersonation fraud from 2000 to 2014, out of more than 1 billion ballots cast.
Overhyped allegations of voter fraud are regularly made, but follow-up investigation almost always reveals that these claims were based on fundamental errors. For example, in 2017, Kris Kobach – the vice chair of President Trump’s voter fraud commission – claimed that thousands of out-of-state voters had cast a ballot illegally in New Hampshire in the 2016 election, swinging that state’s Senate election. Kobach’s claim was based largely on a misunderstanding of New Hampshire law and was quickly debunked.
In 2018, Florida Gov. Rick Scott claimed that there was “rampant fraud” in his U.S. Senate race, but that claim was rejected by law enforcement o cials and election monitors from his own administration. This pattern has repeated itself again and again.
These results are not for lack of looking for voter fraud. In 2002, then Attorney General John Ashcroft created the Voting Access and Integrity Initiative, which aggressively investigated voter fraud allegations as one of the top priorities of the Justice Department.
After ve years, however, the U.S. Department of Justice found little evidence of fraud. In 2007, the New York Times reported that only about 120 people were charged and 86 were convicted of election-related crimes, despite hundreds of millions of votes being cast, during the period under investigation.
While fraud by voters almost never occurs, fraud against voters does occur, albeit rarely. This type of fraud is committed by bigger players, with bigger weapons than an improperly lled ballot. Think Putin’s hackers or election workers stu ng ballot boxes. Importantly, the policies needed to address this kind of fraud are dramatically di erent than the policies proposed to address the specter of voter impersonation fraud.
The Consequences: More restrictive voting laws and lower levels of trust in elections.
Voter fraud claims have had a deeply deleterious e ect on the last decade of American elections. They have been used to justify restrictive state voting practices — like strict voter identi cation laws and overly aggressive purges of the voter rolls — that disenfranchise legitimate voters, often in a discriminatory manner.
More broadly, they undermine trust in the integrity of our elections process.

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2. Noncitizens Are Voting in Droves
The Claim: Millions of noncitizens are voting and tipping election outcomes.
The Truth: Noncitizen voting is exceedingly rare.
Following President Trump’s allegations of widespread noncitizen voting in the 2016 election, the Brennan Center researched the incidence of noncitizen voting in 42 election jurisdictions with large noncitizen populations. We found only about 30 incidents of suspected non-citizen voting referred for further investigation or prosecution out of 23.5 million votes tabulated in those jurisdictions. Put another way, suspected noncitizen votes accounted for 0.0001 percent of the 2016 votes in the jurisdictions we surveyed.
More recently, Texas Secretary of State David Whitley announced that tens of thousands of noncitizens were on the state’s voter rolls and had cast a ballot. This claim was debunked within days — the secretary’s list failed to account for the fact that a large number of people become naturalized citizens and then lawfully register to vote. A federal court intervened to stop voter purges premised on this discredited claim. And Secretary Whitley ultimately resigned.
These results make sense. A single vote rarely swings an election, but the punishment for noncitizen voting is severe — including imprisonment, $10,000 in nes, and deportation.
The Consequences: More restrictive voting laws and lower levels of trust in elections.
Claims of noncitizen voting have been used to justify restrictive voting practices that make it di cult for legitimate voters to participate, including documentary proof of citizenship laws, voter ID laws, and largescale voter purges. These practices disenfranchise many eligible voters, typically in a discriminatory fashion, with little to no bene t.
These claims also undermine trust in the integrity of our elections process, and they are particularly in ammatory because of their intersection with race and immigration.

3. The Machines Malfunctioned — They Were Clearly Rigged
The Claim: “Vote ipping” by voting machines — and other malfunctions, such as machines failing to start, crashing, or freezing — are clear indications that hackers have penetrated machines or that partisans have rigged the election in favor of their preferred candidate.
The Truth: Malfunctions may be the result of wear and tear rather than hacking or manipulation. For example, vote ipping can be caused by the glue between the touch screen and the machine wearing down.

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The Brennan Center has sounded the alarm about aging voting machines for years. In 2018, jurisdictions in 41 states used voting systems that were at least a decade old.
Since then, at least nine states have upgraded their voting systems to eliminate old machines. Importantly, we project that no battleground states will use paperless Direct-Recording Electronic (DRE) voting machines in 2020 — the type of machine most susceptible to hacking and to vote ipping.
The Consequences: Inaccurate claims of hacking or vote-rigging could lead to extreme partisan con ict over election results in 2020.
Given interference in the 2016 election and our subsequent political history, allegations of foreign hacking of voting machines will be highly in ammatory and divisive, as will allegations of vote-rigging.
Credible allegations of hacking must be investigated, hacking must be exposed, and any interference must be remediated.

4. Something’s Fishy — the Results Are Taking Too Long
The Claim: A failure to announce results on election night is an indication of malfeasance in the election process.
The Truth: In a close election, getting the right result can take time.
The modern media environment has engendered an unreasonable expectation that election results will be delivered, de nitively, on election night.
Especially in close elections, that expectation cannot always responsibly be met, because election o cials generally cannot complete the canvass of all absentee and provisional ballots until after Election Day.
Furthermore, election scholars Ned Foley and Charles Stewart have identi ed a “blue shift” in ballots counted after Election Day. These “overtime” ballots break disproportionately for Democratic candidates because Democrats are more likely than Republicans to cast provisional ballots.
Sometimes, close elections or postelection audits can trigger a recanvass of vote totals or broader recounts, which take additional time.
The Consequences: Rushing out election results can lead to inaccurate election night calls of outcomes, resulting in increased partisan con ict over election outcomes and decreased trust in democratic processes.

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On election night in 2000, major news organizations called Florida for Al Gore, retracted that call, then called the state for George W. Bush, and subsequently retracted that call. The election was not de nitively resolved until 36 days later. A postmortem commissioned by CNN atly stated: “Those calls and their retractions constituted a news disaster that damaged democracy and journalism.”
More recently, the Iowa Democratic Party set the expectation that the initial results of the Democratic Caucus would be released at 8:30 p.m. on election night. Due to a cascading series of technological and planning blunders, the party was unable to meet that deadline. The mismatch between expectations and the actual timeline for producing results gave an opening to social media conspiracy-mongers, who sought to undermine trust in the ultimate outcome.
In addition, at times, there are errors in the uno cial election night results, which then need to be corrected. For example, following Election Day 2004, Broward County election o cials double-checked their results and found that tens of thousands of votes on certain state amendments had not been counted as a result of a software glitch. The software used to count absentee ballots started counting backward after it logged 32,000 votes in a race.

5. That's Not What the Election Night Predictions Said
The Claim: Election outcomes that di er from election night projections are suspect.
The Truth: Ballots continue to be counted after election night and, in a close election, those ballots can change the outcome.
In 2020, we will likely see a surge in the use of mail-in and provisional ballots. Covid-19 may dramatically shift voters toward mail balloting. Furthermore, we have seen a fairly steady climb in the use of mail-in ballots over the past quarter-century, and states have continued to expand the use of all-mail elections and by-mail absentee voting in recent years.
In addition, high turnout, a recent escalation in voter purges, and heightened risk of foreign interference may all contribute to increased use of provisional ballots, which are a fail-safe option for voters who cannot con rm their eligibility at the polls for any number of reasons.
These are positive, voter-friendly balloting options, but they can take longer to canvass than regular ballots cast in person on Election Day. For example, a number of states accept mail ballots that arrive after Election Day or o er voters an opportunity to x purported signature discrepancies on their absentee ballot. (Additional states may do so in response to Covid-19.) Similarly, it takes time for election o cials to evaluate the validity of provisional ballots.

The Consequences: Increased partisan con ict over election outcomes and decreased trust in election outcomes.

https://www.brennancenter.org/our-work/research-reports/dirty-tricks-eight-falsehoods-could-undermine-2020-election

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During a recount in Florida’s 2018 Senate race, the eventual winner, Rick Scott, repeatedly claimed without evidence that his opponent was trying to steal the election through fraud. These claims were ampli ed by partisans, including President Trump. As a result, state law enforcement o cials were forced to weigh in to dispute claims of criminal activity.

6. Recounts, Audits, and Election Contests Are Ways to Steal an Election
The Claim: Recounts, audits, and election contests are illegitimate attempts to undo a valid election result.
The Truth: Recounts, audits, and election contests are all normal parts of the elections process that help to ensure that every valid ballot is counted accurately.
A recount is exactly what it sounds like — a process to count the ballots cast in a close election again. Twenty states mandate automatic recounts if a small number of votes separate the top candidates in the election, and 43 permit individuals to petition for a recount, according to the National Conference of State Legislatures.
Audits are a process to verify the accuracy of vote totals, by comparing paper records of votes to electronic vote tallies. Twenty-four states voter veri able paper records for all votes cast as well as post-election audits of paper records before certifying election results. Particularly given the election security challenges that have arisen in recent years, audits are a crucial component of responsible election administration.
Election contests are challenges to election results. The bases for these challenges, and the people permitted to bring them, vary from state to state and from o ce to o ce.
Because each of these processes can result in a di erent election outcome than the one projected on election night, the election night winner has a strong incentive to seek to undermine their legitimacy or to halt them altogether. These incentives will be especially strong in 2020, given the stakes of the election.
The Consequences: Increased partisan con ict over and decreased trust in election outcomes.
In 2000, for example, GOP-organized protesters stormed the Stephen P. Clark Government Center in downtown Miami and succeeded in shutting down the recount of Miami-Dade County’s presidential ballots. The so-called “Brooks Brothers riot” produced a partisan bene t for one side in the election. But it contributed to the “voting wars” that have made voting rules a site of signi cant partisan con ict since 2000.

7. People Can't Help People Vote

https://www.brennancenter.org/our-work/research-reports/dirty-tricks-eight-falsehoods-could-undermine-2020-election

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The Claim: Groups that help many voters cast their absentee ballots are engaged in illegal “ballot harvesting,” and laws that allow such assistance enable election fraud.
The Truth: Partisans use the pejorative “ballot harvesting” to criticize two very di erent sets of practices: (a) illegal and illegitimate absentee ballot tampering and (b) legal and legitimate assistance to voters casting their absentee ballots. Voter assistance is not evidence of fraud.
Ballot tampering is illegal everywhere. That includes practices like stealing ballots from mailboxes, lling out other people’s ballots without their consent and direction, and changing or throwing out other people’s ballots.
Most states allow certain individuals — especially family members, health-care providers, and legal guardians — to assist voters by collecting and submitting their absentee ballots. Many states allow a broader array of individuals to provide ballot assistance. Where allowed, ballot collection is not indicative of any malfeasance or fraud.
The biggest ballot tampering scandal in recent memory was in connection with the 2018 congressional election in North Carolina’s 9th congressional district. There, a GOP political operative ran an operation that collected absentee ballots from voters and tampered with those ballots. This led to the North Carolina Board of Elections ordering a new congressional election in the district. Ballot collection is illegal in North Carolina. Indeed, ballot tampering scandals are not more common in states that allow ballot collection.
Some partisans have tried to leverage the North Carolina election fraud into an indictment of absentee ballot assistance laws by suggesting that ballot assistance practices are all forms of illegitimate ballot harvesting. In particular, they incorrectly claim that the “ballot harvesting” that is illegal in North Carolina is actually legal in California because of a 2016 ballot collection law that permits people other than family members to collect voters’ absentee ballots.
This is false. Ballot assistance may be legal in California, but ballot tampering is illegal there — as it is everywhere in the country.
The Truth, Moreover: Absentee ballot assistance laws can be critical lifelines for voters.
Twenty-seven states have absentee ballot assistance laws that permit voters to designate someone other than a family member to return their absentee ballot, according to the National Conference of State Legislatures.
Some voters need this assistance in order to cast a ballot. For example, the Native American Rights Fund has said, “Native voters, especially tribal elders, often lack reliable transportation and reside in geographically remote areas in which they rely upon friends and neighbors to pick up and return their mail.” As a result, barring third-party assistance with absentee voting “would e ectively disenfranchise tens of thousands of Native voters.”
The Consequences: Lower levels of trust in elections and more restrictive voting laws.
Like other claims of widespread fraud, attacks on “ballot harvesting” undermine trust in the integrity of the elections process.

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In addition, Arizona and Montana have enacted laws to sharply restrict third-party assistance to absentee voters in recent years. In January 2020, the 9th U.S. Circuit Court of Appeals struck down Arizona’s restriction, holding that it had a discriminatory e ect on American Indian, Hispanic, and African American voters in violation of the Voting Rights Act and that it was passed for a discriminatory purpose, in violation of the Fifteenth Amendment. (This decision has been stayed pending Supreme Court review.)
According to the to the court, minority voters were more likely than other voters to rely on assistance casting their absentee ballots, for a variety of reasons including issues with transportation and mail service.

8. We Need More Aggressive Purges to Clear Out All the Ineligible Voters
The Claim: Aggressive voter purges are needed because voter rolls are infected with large numbers of ineligible voters.
The Truth: Claims that voter rolls are “dirty” are overblown.
Many of the claims that jurisdictions have more voters on the rolls than eligible people in the jurisdiction appear to be based on a rudimentary comparison between U.S. Census population data, which is not designed to estimate the eligible voting age population, and county election statistics, which are measured at “book closing” — the period immediately before an election, when registration rates are at their high-water mark. Federal courts have rejected this approach, and many of the targeted jurisdictions have rebutted these claims.
Furthermore, some of these claims have included “inactive” voters — those who have been agged for potential removal from the rolls — in the count of registered voters. Federal law, sensibly, requires jurisdictions to keep these voters on the rolls for two election cycles before purging them. This is a feature, not a bug: it helps to ensure that agged voters have actually changed addresses or otherwise become ineligible.
The Truth, Moreover: Claims of rampant inaccuracies in the voter rolls are part of a sustained pressure campaign to push election o cials to purge their rolls more aggressively. But aggressive purges can result in eligible voters being improperly kicked o the rolls.
For example, o cials and activists have pushed the use of interstate data-matching systems, including one system administered by the Kansas secretary of state, to identify voters registered in more than one state. But the Kansas system has proven deeply awed, in part because it matches voters using only their rst name, last name, and date of birth, which is likely to produce false positives in groups as large as statewide or multistate registration lists. (In December 2019, Kansas suspended the system, as part of a court settlement.)
There has also been an uptick in state e orts to purge noncitizens, but the data states are using as the basis for these purges has not been consistently reliable. Texas’s disastrous 2019 noncitizen purge attempt illustrates the point.

https://www.brennancenter.org/our-work/research-reports/dirty-tricks-eight-falsehoods-could-undermine-2020-election

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The Brennan Center has documented a dramatic surge in purge rates since the Supreme Court gutted the Voting Rights Act (VRA) in 2013.
Counties that were previously covered by Section 5 of the VRA — that is, counties in states with a history of voting discrimination — have purged people from the rolls at much higher rates than other counties have. The median purge rate between 2016 and 2018 in jurisdictions previously covered by Section 5 was 40 percent higher than the purge rate in jurisdictions that were not covered.
The Consequences, Moreover: Improper purges can disenfranchise eligible voters, cause undue delays at the polls, and heighten distrust in our election systems.
In 2016, the New York City Board of Elections purged hundreds of thousands of voters with little notice to voters or the public. On Election Day, thousands of voters showed up at the polls only to nd that their registrations had been deleted.
In 2019, the Texas secretary of state announced that there were 95,000 noncitizens on the state’s voter rolls, including 58,000 who had voted illegally. This claim, which was based on state driver’s license data, was false. A federal court halted purges based on the faulty information and the secretary of state eventually resigned over the debacle, but not before President Trump ampli ed the initial false claim, sowing distrust in the elections process.
As noted above, claims that several Iowa counties had more voters on their rolls than eligible voters in the county also appeared ahead of the Democratic Caucus in January 2020. These claims were quickly debunked, but the confusion around the caucus vote counting gave them new life and gave partisans new opportunities to question the integrity of the election.

https://www.brennancenter.org/our-work/research-reports/dirty-tricks-eight-falsehoods-could-undermine-2020-election

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