U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20-cv-10831-TGB-EAS

Esshaki v. Whitmer et al Assigned to: District Judge Terrence G. Berg Referred to: Magistrate Judge Elizabeth A. Stafford Demand: $0 Case in other court: U.S. Court of Appeals - Sixth
Circuit, 20-01336 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 03/31/2020 Date Terminated: 09/02/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff

Eric Esshaki

represented by Eric Steven Esshaki 1731 Hazel Birmingham, MI 48009 313-460-1421 Email: eesshaki@howardandhoward.com ATTORNEY TO BE NOTICED

Gregory J. Rohl The Law Offices of Gregory J. Rohl, P.C. 41850 W. 11 Mile Road Suite 110 Novi, MI 48375 248-380-9404 Fax: 248-380-5362 Email: gregoryrohl@yahoo.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Ms. Shakira L Hawkins

represented by Saura J. Sahu Clancy Advisors PLC 230 Nickels Arcade Ann Arbor, MI 48104 734-780-7595 Email: sahu@clancyadvisors.com ATTORNEY TO BE NOTICED

V.

Defendant Gretchen Whitmer
Defendant Jocelyn Benson
Defendant Jonathan Brater
Defendant Armand Velardo V. Movant Brenda K. Sanders TERMINATED: 07/30/2020
Amicus Daniel Finley
Amicus American Civil Liberties Union of Michigan

represented by Heather S. Meingast MI Dept of Attorney General Appellate Division P.O. Box 30736 Lansing, MI 48909 517-335-7659 Email: meingasth@michigan.gov ATTORNEY TO BE NOTICED
represented by Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
represented by Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda K. Sanders PO Bo 14183 Detroit, MI 48214 313-685-1096 PRO SE
represented by Daniel P. Finley FINLEY LAW FIRM 300 North Main Street, Suite 6 Chelsea, MI 48118 (734) 475-4659 Fax: (734) 475-4672 Email: dpfinleyesq@comcast.net ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave.

Amicus Whittney Williams
Amicus Deana Beard
Amicus Michigan Republican Party

Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED
Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615-2407 Email: mjsteinb@umich.edu ATTORNEY TO BE NOTICED
represented by Jean E. Kordenbrock Kordenbrock and Associates, P.C. 215 South Washington Square Suite C Lansing, MI 48933 517-977-0587 Email: jkordenbrock@fraserlawfirm.com ATTORNEY TO BE NOTICED
represented by Deana Beard 2885 S Trenton Dr Trenton, MI 48183 (734) 502-7411 PRO SE
represented by Charles R. Spies Clark Hill PLC 1001 Pennsylvania Ave NW Suite 1300 Washington, DC 20004 202-572-8663 Fax: 202-572-8683 Email: cspies@dickinsonwright.com ATTORNEY TO BE NOTICED
Robert L. Avers Dickinson Wright PLLC 350 S. Main Street Ste 300

V. Intervenor Matt Savich
Intervenor Lynn M. Maison

Ann Arbor, MI 48104 734-623-1672 Fax: 734-623-1627 Email: ravers@dickinson-wright.com ATTORNEY TO BE NOTICED
represented by Michael S. Cafferty Michael S. Cafferty & Assoc. 333 W. Fort Street Suite 1400 Detroit, MI 48226 313-964-3070 Email: mcaffe@aol.com ATTORNEY TO BE NOTICED
represented by Jean E. Kordenbrock (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/31/2020
03/31/2020 04/01/2020 04/01/2020
04/01/2020

# Docket Text

COMPLAINT filed by Eric Esshaki against All Defendants. Plaintiff

1

requests summons issued. Receipt No: AMIEDC-7713384 - Fee: $

400. County of 1st Plaintiff: Oakland - County Where Action Arose:

Oakland - County of 1st Defendant: Lenawee. [Previously dismissed

case: No] [Possible companion case(s): None] (Rohl, Gregory)

(Entered: 03/31/2020)

2 MOTION for Temporary Restraining Order by Eric Esshaki. (Rohl, Gregory) (Entered: 03/31/2020)

3 SUMMONS Issued for *Jocelyn Benson, Jonathan Brater, Gretchen Whitmer* (SKra) (Entered: 04/01/2020)

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 (SKra) (Entered: 04/01/2020)

4 NOTICE TO APPEAR BY TELEPHONE: Miscellaneous Hearing set for 4/1/2020 01:30 PM before District Judge Terrence G. Berg (AChu) (Entered: 04/01/2020)

04/01/2020 04/07/2020 04/10/2020
04/10/2020
04/10/2020 04/10/2020
04/10/2020 04/13/2020 04/14/2020 04/14/2020 04/14/2020 04/14/2020

Minute Entry for proceedings before District Judge Terrence G. Berg: Miscellaneous Hearing held on 4/1/2020 (Court Reporter: None Present, Not on the Record) (AChu) (Entered: 04/01/2020)

5 ATTORNEY APPEARANCE: Heather S. Meingast appearing on behalf of Jocelyn Benson, Jonathan Brater, Gretchen Whitmer (Meingast, Heather) (Entered: 04/07/2020)

RESPONSE to 2 MOTION for Temporary Restraining Order filed by

6

Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Attachments:

# 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Chart) (Meingast,

Heather) (Entered: 04/10/2020)

MOTION to Intervene for leave to file Amicus Curiae Brief under

7

Fed. R. Civ. P. 29 and 32 by Daniel Finley. (Attachments:

# 1 Document Continuation Amicus Curiae Brief, # 2 Exhibit Ex. 1)

(Finley, Daniel) (Entered: 04/10/2020)

8 NOTICE TO APPEAR BY TELEPHONE: Miscellaneous Hearing set for 4/13/2020 10:30 AM before District Judge Terrence G. Berg (AChu) (Entered: 04/10/2020)

9 NOTICE OF HEARING BY VIDEOCONFERENCE on 2 MOTION for Temporary Restraining Order. Reply due by 4/14/2020, Motion Hearing set for 4/15/2020 02:00 PM before District Judge Terrence G. Berg. (AChu) (Entered: 04/10/2020)

TEXT-ONLY ORDER GRANTING 7 MOTION to Intervene. Any amicus curiae brief by movant shall be filed by 4/14/20. Issued by District Judge Terrence G. Berg. (AChu) (Entered: 04/10/2020)

Minute Entry for proceedings before District Judge Terrence G. Berg: Miscellaneous Hearing held on 4/13/2020 (Court Reporter: None Present, Not on the Record) (AChu) (Entered: 04/13/2020)

10 REPLY to Response re 2 MOTION for Temporary Restraining Order filed by Eric Esshaki. (Rohl, Gregory) (Entered: 04/14/2020)

MOTION to Intervene by Matt Savich. (Attachments: # 1 Exhibit

11

Proposed Intervening Complaint) (Cafferty, Michael) (Entered:

04/14/2020)

12 ATTORNEY APPEARANCE: Daniel P. Finley appearing on behalf of Daniel Finley Amicus Curiae (Finley, Daniel) (Entered: 04/14/2020)

13 Amicus Curiae BRIEF by Daniel Finley (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Finley, Daniel) (Entered: 04/14/2020)

04/14/2020 04/14/2020
04/15/2020 04/15/2020 04/15/2020 04/15/2020 04/15/2020 04/15/2020 04/15/2020
04/20/2020 04/20/2020 04/21/2020

14 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union of Michigan. (Korobkin, Daniel) (Entered: 04/14/2020)

Amicus Curiae BRIEF by American Civil Liberties Union of

15

Michigan (Attachments: # 1 Index of Exhibits, # 2 Exhibit A -

Bannister Declaration, # 3 Exhibit B - Faulkner for Virginia v.

Virginia Department of Elections) (Korobkin, Daniel) (Entered:

04/14/2020)

16 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union of Michigan. (Steinberg, Michael) (Entered: 04/15/2020)

17 EMERGENCY MOTION for Joinder and/or Motion for Leave to File Amicus Curiae Brief by Deana Beard. (AChu) (Entered: 04/15/2020)

Intervenor's Complaint for Emergency Declaratory and Injunctive

18

Relief by Kyle Kopitke. (AChu) (Entered: 04/15/2020)

19 NOTICE of Appearance by Jean E. Kordenbrock on behalf of Whittney Williams. (Kordenbrock, Jean) (Entered: 04/15/2020)

MOTION for Leave to File an Amicus Curiae Brief by Whittney

20

Williams. (Kordenbrock, Jean) (Entered: 04/15/2020)

21 Amicus Curiae BRIEF by Whittney Williams (Kordenbrock, Jean) (Entered: 04/15/2020)

Minute Entry for proceedings before District Judge Terrence G. Berg: Motion Hearing held on 4/15/2020 re 2 MOTION for Temporary Restraining Order filed by Eric Esshaki. Disposition: Motion taken under advisement. (Court Reporter: Linda Cavanagh) (AChu) (Entered: 04/15/2020)

ORDER GRANTING Motions to File Amicus Curiae Briefs;

22

GRANTING AND DENYING Motions to Intervene. Signed by

District Judge Terrence G. Berg. (AChu) (Entered: 04/20/2020)

ORDER GRANTING 2 Motion for Preliminary Injunction. Signed by

23

District Judge Terrence G. Berg. (AChu) (Entered: 04/20/2020)

24 NOTICE OF APPEAL by Jocelyn Benson, Gretchen Whitmer,

04/21/2020 04/22/2020

Jonathan Brater re 23 Order on Motion for TRO. Receipt No: AMIEDC-7753388 - Fee: $ 505 - Fee Status: Fee Paid. (Meingast, Heather) (Entered: 04/21/2020)

25 Certificate of Service re 24 Notice of Appeal. (SKra) (Entered: 04/21/2020)

Emergency MOTION Motion Under Rule 60(B) for Limited Relief

26

from the Court's Order Granting a Preliminary Injunction, or

04/22/2020
04/22/2020 04/22/2020 04/22/2020 04/23/2020 04/23/2020 04/23/2020 04/24/2020
04/24/2020

Alternatively for a Stay Pending Emergency Appeal re 23 Order on Motion for TRO by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Declaration of Melissa Malerman) (Meingast, Heather) (Entered: 04/22/2020)

27 Ex Parte MOTION for Leave to File Excess Pages for Defendants' Brief in Support of Emergency Motion under Rule 60(B) for Limited Relief from the Court's Order Granting a Preliminary Injunction, or Alternatively for a Stay Pending Emergency Appeal by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 04/22/2020)

TEXT-ONLY ORDER GRANTING 27 Ex Parte MOTION for Leave to File Excess Pages. Issued by District Judge Terrence G. Berg. (AChu) (Entered: 04/22/2020)

28 NOTICE TO APPEAR BY TELEPHONE: Miscellaneous Hearing set for 4/23/2020 11:00 AM before District Judge Terrence G. Berg (AChu) (Entered: 04/22/2020)

29 AMENDED NOTICE OF HEARING: Miscellaneous Hearing set for 4/23/2020 11:00 AM before District Judge Terrence G. Berg. (AChu) (Entered: 04/22/2020)

ATTORNEY APPEARANCE: Eric Steven Esshaki appearing on

30

behalf of Eric Esshaki (Esshaki, Eric) (Entered: 04/23/2020)

DECLARATION by Matt Savich filed by Matt Savich (Cafferty,

31

Michael) (Entered: 04/23/2020)

Minute Entry for proceedings before District Judge Terrence G. Berg: Miscellaneous Hearing held on 4/23/2020 (Court Reporter: Linda Cavanagh) (AChu) (Entered: 04/24/2020)

32 TRANSCRIPT of Motion for Temporary Restraining Order held on 04/15/2020. (Court Reporter/Transcriber: Linda M. Cavanagh) (Number of Pages: 45) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber 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 5/15/2020. Redacted Transcript Deadline set for 5/26/2020. Release of Transcript Restriction set for 7/23/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Cavanagh, Linda) (Entered: 04/24/2020)

DECLARATION filed by Eric Esshaki (Rohl, Gregory) (Entered:

33

04/24/2020)

04/24/2020

34 SUPPLEMENTAL BRIEF re 26 Emergency MOTION Motion Under Rule 60(B) for Limited Relief from the Court's Order Granting a Preliminary Injunction, or Alternatively for a Stay Pending

04/24/2020 04/24/2020 04/25/2020 05/05/2020 05/06/2020
05/06/2020 05/07/2020 05/07/2020

Emergency Appeal re 23 Order on Motion for TRO filed by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Declaration of Melissa Malerman) (Meingast, Heather) (Entered: 04/24/2020)
35 DECLARATION by Dennis Donahue filed by American Civil Liberties Union of Michigan (Attachments: # 1 Exhibit Declaration of Dennis Donahue) (Korobkin, Daniel) (Entered: 04/24/2020)
36 Brief in RESPONSE to 26 Defendant's Emergency Motion Under Rule 60(B) for Limited Relief from the Court's Order Granting a Preliminary Injunction, or Alternatively for a Stay Pending Emergency Appeal filed by Deana Beard. (AChu) (Entered: 04/24/2020)

37

ORDER DENYING 26 Defendants' Rule 60(b) Motion and

Request for Stay Pending Appeal. Signed by District Judge Terrence

G. Berg. (AChu) (Entered: 04/25/2020)

45 ORDER from U.S. Court of Appeals - Sixth Circuit re 24 Notice of Appeal filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer [Appeal Case Number 20-1336] (SKra) (Entered: 05/07/2020)

TEXT-ONLY ORDER: In light of the recent ruling by the 6th Circuit Court of Appeals, Defendants are directed to submit proposed reasonable accommodations by 5:00 p.m. on 5/6/2020. Any objections from Plaintiffs shall be filed on or before noon on 5/7/2020. The Court will hold a hearing via videoconference on 5/7/2020 at 3:00 p.m. Set Hearings: (Response due by 5/6/2020 05:00 p.m., Objections due by 12:00 noon on 5/7/2020, Motion Hearing set for 5/7/2020 03:00 PM before District Judge Terrence G. Berg. Issued by District Judge Terrence G. Berg. (AChu) (Entered: 05/06/2020)

38 STATEMENT of Proposed Amendment to April 20, 2020 Order Granting Preliminary Injunction by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer (Meingast, Heather) (Entered: 05/06/2020)

39 ERRATA Sheet re: 38 Statement filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer. by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer (Attachments: # 1 Document Continuation Errata Page 5) (Meingast, Heather) (Entered: 05/07/2020)

40 SUPPLEMENTAL BRIEF re 13 Amicus Curiae Brief filed by Daniel Finley. (Finley, Daniel) (Entered: 05/07/2020)

05/07/2020 05/07/2020
05/07/2020 05/07/2020 05/07/2020 05/07/2020 05/07/2020 05/11/2020 05/11/2020 05/12/2020
05/12/2020

MOTION for Leave to File Amicus Curiae Brief by Michigan

41

Republican Party. (Avers, Robert) (Entered: 05/07/2020)

42 SUPPLEMENTAL BRIEF re Text-Only Order,,, Set Motion and R&R Deadlines/Hearings,, 38 Statement RESPONSE TO DEFENDANTS PROPOSED ACCOMMODATIONS filed by American Civil Liberties Union of Michigan. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Witucki Declaration, # 3 Exhibit B Hawkins Declaration) (Korobkin, Daniel) (Entered: 05/07/2020)

43 Amicus Curiae BRIEF by Michigan Republican Party (Avers, Robert) (Entered: 05/07/2020)

RESPONSE to 38 Defendants Proposed Order by Deana Beard.

44

(AChu) (Entered: 05/07/2020)

TEXT-ONLY ORDER GRANTING 41 MOTION for Leave to File Amicus Curiae Brief filed by Michigan Republican Party. Issued by District Judge Terrence G. Berg. (AChu) (Entered: 05/07/2020)
46 NOTICE of Appearance by Charles R. Spies on behalf of Michigan Republican Party. (Spies, Charles) (Entered: 05/07/2020)
Minute Entry for proceedings before District Judge Terrence G. Berg: Hearing held re 45 ORDER from U.S. Court of Appeals - Sixth Circuit on 5/7/2020. (Court Reporter: Linda Cavanagh) (AChu) (Entered: 05/07/2020)
47 Emergency MOTION to Intervene and Brief in Support, with Exh. A: [Proposed] Compl. in Intervention by Shakira L Hawkins. (Sahu, Saura) (Entered: 05/11/2020)
48 NOTICE by Shakira L Hawkins re 47 Emergency MOTION to Intervene and Brief in Support, with Exh. A: [Proposed] Compl. in Intervention UPDATE RE CONCURRENCE AS TO PLAINTIFF ESSHAKI (Sahu, Saura) (Entered: 05/11/2020)
TEXT-ONLY ORDER: By 5:00 PM on 5/12/2020, proposed intervenor Shakira L. Hawkins shall file supplemental briefing addressing: (i) whether she has standing to bring her claim given that her name is currently on the ballot, and (ii) whether she personally made any expenditures as of March 10, 2020 that would have necessitated establishment of a candidate committee under Michigan Election Law. See Mich. Comp. Laws § 169.203(1)(c). Issued by District Judge Terrence G. Berg. (AChu) (Entered: 05/12/2020)
49 SUPPLEMENTAL BRIEF re 47 Emergency MOTION to Intervene and Brief in Support, with Exh. A: [Proposed] Compl. in Intervention filed by Shakira L Hawkins. (Sahu, Saura) (Entered: 05/12/2020)

05/12/2020 05/12/2020 05/13/2020 05/13/2020
05/14/2020 05/15/2020
05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020
05/18/2020

50 EXHIBIT A & B re 49 Supplemental Brief by Shakira L Hawkins (Sahu, Saura) (Entered: 05/12/2020)

51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction by Shakira L Hawkins. (Sahu, Saura) (Entered: 05/12/2020)

ORDER granting 47 Motion to Intervene. Signed by District Judge

52

Terrence G. Berg. (AChu) (Entered: 05/13/2020)

53 NOTICE OF HEARING on 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction. Response due by 5/15/2020, Reply due by 5/18/2020 12:00 noon, Motion Hearing set for 5/18/2020 03:00 PM before District Judge Terrence G. Berg (AChu) (Entered: 05/13/2020)

54 RESPONSE to 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction filed by Daniel Finley. (Finley, Daniel) (Entered: 05/14/2020)

55 RESPONSE to 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction filed by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 05/15/2020)

56 REPLY to Response re 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction filed by Shakira L Hawkins. (Sahu, Saura) (Entered: 05/18/2020)

57 NOTICE of Appearance by Jean E. Kordenbrock on behalf of Lynn M. Maison. (Kordenbrock, Jean) (Entered: 05/18/2020)

58 MOTION emergency motion to intervene and brief in support, MOTION to Intervene by Lynn M. Maison. (Kordenbrock, Jean) (Entered: 05/18/2020)

59 EXHIBIT A Verified Complaint re 58 MOTION emergency motion to intervene and brief in support MOTION to Intervene by Lynn M. Maison (Kordenbrock, Jean) (Entered: 05/18/2020)

60 NOTICE of Joinder/Concurrence in by Lynn M. Maison RESPONSE TO MOTION FOR TRO - #51 (Kordenbrock, Jean) (Entered: 05/18/2020)

61 MOTION Motion to File Sur-Reply re 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 05/18/2020)

62 SUR-REPLY re 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction filed by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 05/18/2020)

05/18/2020
05/19/2020 05/20/2020 07/27/2020 07/30/2020 07/30/2020 08/13/2020 08/14/2020 08/20/2020
08/21/2020 08/24/2020 09/02/2020

Minute Entry for proceedings before District Judge Terrence G. Berg: Motion Hearing held on 5/18/2020 re 51 MOTION for Temporary Restraining Order Preliminary Injunction and Permanent Injunction filed by Shakira L Hawkins. Disposition: Motion taken under advisement (Court Reporter: Linda Cavanagh) (AChu) (Entered: 05/18/2020)

63 Amicus Curiae BRIEF by Armand Velardo (Velardo, Armand) (Entered: 05/19/2020)

ORDER GRANTING 51 Motion for Preliminary Injunction;

64

GRANTING 58 Motion to Intervene; GRANTING 61 Motion to File

Sur-Reply. Signed by District Judge Terrence G. Berg. (AChu)

(Entered: 05/20/2020)

EMERGENCY MOTION to Intervene by Brenda K. Sanders.

65

(Attachments: # 1 Intervenor Complaint, # 2 Application to Proceed

without Prepaying Fees or Costs) (ATee) (Entered: 07/27/2020)

66

ORDER DENYING 65 Motion to Intervene. Signed by District

Judge Terrence G. Berg. (AChu) (Entered: 07/30/2020)

TEXT-ONLY CERTIFICATE OF SERVICE re 66 Order on Motion to Intervene on Brenda K. Sanders at PO Box 14183, Detroit, MI 48214. (AChu) (Entered: 07/30/2020)

67 ORDER consolidating cases 20-10831 and 20-11067. Signed by District Judge Terrence G. Berg. (DPer) (Entered: 08/14/2020)

68 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *08/13/20*. Designated lead case number is *20-10831*. (DPer) (Entered: 08/14/2020)

TEXT-ONLY ORDER: On August 4, 2020, Michigan's primary election took place. As a result of this proceeding, Plaintiffs have obtained the injunctive relief each sought. Plaintiffs are hereby ORDERED TO SHOW CAUSE by Monday, August 24, 2020 why this case should not be dismissed as moot. (Response due by 8/24/2020) Issued by District Judge Terrence G. Berg. (AChu) (Entered: 08/20/2020)

69 RESPONSE TO ORDER TO SHOW CAUSE by Matt Savich. (Attachments: # 1 Exhibit Ex 1 - Response to Motion to Dismiss) (Cafferty, Michael) (Entered: 08/21/2020)

70 SUPPLEMENTAL BRIEF re Text-Only Order,, Set Deadlines/Hearings, filed by Shakira L Hawkins. (Sahu, Saura) (Entered: 08/24/2020)

ORDER OF DISMISSAL. Signed by District Judge Terrence G. Berg.

71

(AChu) (Entered: 09/02/2020)

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,
Plaintiff,
v
GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

No. 2:20-cv-10831 HON. TERRENCE G. BERG MAG. ELIZABETH A. STAFFORD

Defendants. ______________________________________/ Gregory J. Rohl (P39185) Attorney for Plaintiff 41850 W. Eleven Mile Road, Suite 110 Novi, Michigan 48375 248.380.5362

Heather S. Meingast (P55439) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909 517.335.7659
/

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR TRO/PRELIMINARY INJUNCTION

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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether Plaintiff’s motion for temporary restraining order should be
denied where Plaintiff has failed to satisfy the requirements for granting such extraordinary relief? CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.544f Mich. Comp. Laws § 168.133 Anderson v. Celebrezze, 460 U.S. 780 (1983) Burdick v. Takushi, 504 U.S. 428 (1992) Elrod v. Burns, 427 U.S. 347, 373-74 (1976) Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) Libertarian Party of Ky v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016) Maryland v. King, 133 S. Ct. 1 (2012) Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (6th Cir. 2016)
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TABLE OF CONTENTS Page
Concise Statement of Issues Presented ..............................................................i Controlling or Most Appropriate Authority .......................................................i Table of Contents ..........................................................................................ii Introduction .................................................................................................. 1 Statement of Facts ......................................................................................... 1
A. Statutory Requirements................................................................4 B. Procedural History ...................................................................... 8 Argument ..................................................................................................... 9 I. Plaintiff’s motion for a temporary restraining order should be denied where he has not shown a likelihood of success on the merits of his claims or imminent irreparable harm....................................................... 9 A. Temporary or preliminary injunction factors...................................9 B. Plaintiff has not shown a strong likelihood of success on the
merits of his First and Fourteenth Amendment claims....................10 1. The burden on Plaintiff is not severe...................................12 2. The State’s interest in the signature and deadline
requirements is substantial. ............................................... 15 C. Plaintiff has not shown he will suffer irreparable harm absent
an injunction.............................................................................18 D. The balance of harms weighs in Defendants’ favor, and an
injunction is contrary to the public interest. .................................. 20 E. Request if the Court is inclined to grant injunctive relief. ............... 22 Conclusion and Relief Requested .................................................................. 22
ii

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Certificate of Service ................................................................................... 23
iii

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INTRODUCTION Plaintiff asks this Court to enjoin the signature requirement and filing deadline for nominating petitions to qualify as a candidate for the U.S House of Representatives. He argues the Covid-19 pandemic and the Governor’s orders limiting social interactions make it impossible for him to meet these requirements. But Plaintiff fails to demonstrate a strong likelihood of success on the merits of his First and Fourteenth Amendment constitutional claims, and his similar failure to sufficiently demonstrate irreparable harm requires denial of his motion.
STATEMENT OF FACTS Plaintiff Eric Esshaki is a candidate for Michigan’s Eleventh Congressional District of the United States House of Representatives. (Comp., Doc. 1, PgID 5, ¶ 17). Esshaki filed his statement of candidacy with the Federal Election Commission on October 31, 2019. (Id. ¶ 18.) He also “hired campaign staff and has been diligently campaigning since October 2019.” (Id., ¶ 19.) Under Michigan’s Election Law, to gain access to the August 4, 2020 primary ballot, Esshaki must file a nominating petition containing at least 1,000 valid signatures from registered voters with Defendant Secretary of State Jocelyn Benson by April 21, 2020. Mich. Comp. Laws §§ 168.133, 168.544f. Esshaki alleges that “his campaign team implemented a plan to collect the required number of signatures early on in his campaign.” (Compl., Doc. 1, PgID 6,
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¶ 21.) He further alleges that he, “his campaign team, and several volunteers and supporters have been working diligently, and have already collected nearly seven hundred (700) valid signatures.” (Id., PgID 6, ¶ 22.)
On March 10, 2020, Defendant Governor Gretchen Whitmer declared a state of emergency and invoked emergency powers in Michigan in Executive Order No. 2020-4, in response to the spreading pandemic related to Covid-19 and to two confirmed cases in Michigan.1 This order did not restrict the movement or gathering of people in Michigan. On March 13, 2020, Governor Whitmer issued Executive Order 2020-5, prohibiting assemblages of 250 or more people in a single shared space with limited exceptions, and ordering the closure of all K-12 school buildings.2
Esshaki alleges that after President Donald Trump asked people nationwide on March 15, 2020 to begin social distancing in response to the spreading pandemic related to Covid-19, “Esshaki and his campaign postponed some of its efforts to collect signatures.” (Id., PgID 6-7, ¶¶ 23-24.) (Emphasis added).
At the state level, on March 16, 2020, the Governor ordered various places of public accommodation, like restaurants, bars, and exercise facilities, to close
1 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. 2 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html.
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their premises to the public.3 And on March 17, 2020, the Governor issued an order rescinding 2020-5, changing the cap on assemblages to 50 persons in a single shared indoor space, and expanding the scope of exceptions from that cap.4
Subsequently, on March 23, 2020, again in response to the spreading Covid19 pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21 (referred to as the “Stay-home Order” in Esshaki’s complaint), which essentially ordered all persons not performing essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, engage in outdoor activity consistent with social distancing, and other limited exceptions. 5 The order also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household.6 That order was to continue through April 13, 2020, however, on April 9, 2020, the Governor issued Executive Order 2020-42, extending the Stay-home Order through April 30, 2020.7
3 EO No. 2020-9, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. Replaced by EO 2020-20. 4 EO No. 2020-11, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. 5 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. 6 (Id.) 7 EO No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf.
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As Esshaki alleges, the Stay-home Order does not create an express
exception from its restrictions for candidates and campaign staff. (Doc. 1, Compl.,
PgID 8, ¶ 29). On or around March 25, 2020, Esshaki and his campaign staff were
informed by Secretary Benson’s staff that the April 21, 2020 deadline to obtain and
submit the required number of signatures was still in effect. (Id., ¶ 30). This
information was also publicly posted on the Michigan Bureau of Elections’
website. (Id., ¶ 31).
Esshaki alleges that the Governor’s Stay-home Order has made it impossible
for candidates, including himself, “to obtain the required number of elector
signatures by April 21, 2020.” (Id., ¶ 36).
A. Statutory Requirements As noted above, Mich. Comp. Laws § 168.133 provides the filing deadline
for congressional nominating petitions:
In order for the name of a person as a candidate for nomination by a political party for the office of representative in congress to appear under a particular party heading on the official primary ballot in the election precincts of a congressional district, a nominating petition shall have been signed by a number of qualified and registered electors residing in the district as determined under section 544f. . . . Beginning January 1, 2014, if the congressional district comprises more than 1 county, the nominating petition shall be filed with the secretary of state no later than 4 p.m. of the fifteenth Tuesday before the August primary. . . . Beginning January 1, 2014, if the congressional district is within 1 county, the nominating petition shall be filed with the county clerk of that county no later than 4 p.m. of the fifteenth Tuesday before the August primary. Nominating petitions shall be in the form as prescribed in section 544c. [Emphasis added.]
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Under the statute, this year’s deadline is April 21, 2020. And section 544f requires that Esshaki, as a congressional candidate for the House, submit a nominating petition containing at least 1,000 valid signatures and not more than 2,000 signatures. Mich. Comp. Laws § 168.544f.
With respect to the race for the Eleventh Congressional District, Democrat Haley Stevens, the current officeholder, and Republican candidates Frank Acosta and Whittney Williams, filed their nominating petitions on March 16, 2020, February 7, 2020, and March 18, 2020, respectively.8 And overall, 24 congressional candidates have already filed their petitions.9 Notably, candidates for these congressional races, including Esshaki had he filed his statement of candidacy earlier, could have collected and filed signatures in 2019.
In addition to congressional candidates, there are a number of other offices subject to the April 21 deadline for filing nominating petitions: U.S. Senator, State Representative, all non-incumbents seeking judicial offices, all countywide offices and county commissioners, all township offices, and the Wayne County Community College Board of Trustees. (Ex 1, Chart). But the signature requirements vary widely for these offices, given the size of the district and
8 See 2020 Michigan Candidate Listing for August Primary, available at https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html. 9 (Id.)
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whether the candidate is affiliated with a party or running as an unaffiliated

candidate. (Id.)

The April 21 deadline for nominating petitions is just one of many deadlines

that carefully control the election processes leading up to an election, and relevant

here, leading up to the August 4, 2020 primary election.10 The deadline for

nominating petitions helps ensure that the filing official responsible for canvassing

such petitions, here Secretary Benson, has time to perform the canvass, and that the

slate of candidates can be properly certified, here by the Board of State Canvassers,

and that ballots can be printed, proofed, and ready for delivery by the local clerks

to absent ballot voters, including military and overseas voters.11 The relevant and

important deadlines for the August primary include:

Date and Time12 By 4:00 pm on April 21
By 4:00 pm on April 24 April 28
June 2

Action Candidates for partisan office must file nominating petitions and Affidavit of Identity for the August Primary Deadline for candidates to withdraw from the August Primary Deadline to submit challenges against nominating petitions filed by partisan candidates to filing official Board of State Canvassers must complete canvass of nominating petitions filed by candidates for the

Statute MCL 168.133
MCL 168.134 MCL 168.552
MCL 168.552

10 See 2020 Michigan Election Dates, pp 6-9, available at https://www.michigan.gov/documents/sos/2020_Elec-Dates-Booklet_ED-12_1009-19_668275_7.pdf. 11 (Id.) 12 All times are 5:00 pm unless otherwise specifically noted.
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June 5
June 20 June 20
June 25 By 4:00 pm on July 24 August 4

August Primary; Secretary of State certifies candidates eligible to appear on August primary ballot to county election commissions. Approximate date county clerks will begin printing ballots for the August Primary Delivery of military and overseas AV ballots must begin Deadline for county clerks to deliver AV ballots for the August Primary to local clerks Deadline for AV ballots to be made available to voters Write-in candidates file Declaration of Intent form State Primary

MCL 168.759a
MCL 168.714
Mich. Const., Art. 2 § 4 MCL 168.737a

Currently, 67 candidates for various offices have filed petition signatures with the Bureau of Elections with more petition filings anticipated by the April 21,, 2020 filing deadline.13 After the filing deadline, interested parties have the opportunity to submit challenges against the nominating petitions to the Bureau within seven days. Mich. Comp. Laws § 168.552. The petitions and any challenges must be canvassed by staff to determine the number of facially valid signatures by reviewing each petition sheet for facial defects such as heading errors, circulator errors, or incomplete signor information like omitted date or

13 See 2020 Michigan Candidate Listing for August Primary, available at https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html
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address. The Bureau then completes a staff report containing recommendations to the Board of State Canvassers, which must be made available at least 2 full business days prior to the Board’s meeting where it will determine the sufficiency of the nominating petitions. Mich. Comp. Laws § 168.552(10). The Board of State Canvassers must meet and complete the canvass of all nominating petitions by June 2, 2020. Mich. Comp. Laws § 168.552(11). That same day, the Secretary of State must certify the names of candidates eligible to appear on the August primary ballot to the local county clerks who will commence printing. (Id.)
B. Procedural History Plaintiff Esshaki filed his complaint for declaratory and injunctive relief, along with a motion for a temporary restraining order, late in the day on March 31, 2020. The undersigned counsel received a forwarded email from Plaintiff’s counsel containing the electronic filings at 11:43 p.m. on March 31, 2020. The undersigned counsel distributed electronic copies of the complaint, motion, and brief to the named parties during the morning of April 1, 2020. The same day, this Court and the parties, represented by counsel, conducted a telephone conference to discuss Plaintiff’s motion. Defendants agreed to submit a response to the motion by Friday, April 10, 2020.
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ARGUMENT I. Plaintiff’s motion for a temporary restraining order should be denied
where he has not shown a likelihood of success on the merits of his claims or imminent irreparable harm. A. Temporary or preliminary injunction factors. Like a preliminary injunction, a temporary restraining order is an extraordinary remedy “designed to preserve the relative positions of the parties until a trial on the merits can be held.” Cf. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). A court considers “four factors when determining whether to grant a temporary restraining order: ‘(1) whether the movant has a “strong” likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of [a TRO] would cause substantial harm to others; and (4) whether the public interest would be served by issuance of [a TRO].’ ” Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F. Supp.2d 853, 860 (S.D. Ohio 2008) (quoting Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)). No one factor is dispositive; rather the court must balance all four factors. In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). The burden of persuasion is on the party seeking the injunctive relief. Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978).
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B. Plaintiff has not shown a strong likelihood of success on the merits of his First and Fourteenth Amendment claims.
The Sixth Circuit has long held that in determining whether to grant an 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).
Plaintiff argues that the enforcement of the statutory deadline and the statutory signature requirement “during this national time of crisis and in light of Governor Whitmer’s Stay-home Order is unconstitutional.” (Doc. 2, TRO Brf, PgID 53). This is because “Defendants have stripped candidates like Esshaki of the ability to meet these requirements because the Stay-home Order prohibits Esshaki from leaving his home for non-essential purposes like signature gathering.” (Id.) He further notes that the Stay-home Order “further requires Esshaki to maintain a distance of six feet from voters in his district, which effectively eliminates any possibility of electors to provide their signatures without themselves having violated the Order.” (Id.) And that taken together, the statutes and “the Stay-home Order impose burdens so severe that they ‘function as an absolute bar’ to Esshaki getting his name on the August 2020 primary ballot.” (Id., quoting Graveline, et al v. Benson, et al., 336 F. Supp. 3d 801, 809 (E.D. Mich. 2018).
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While Plaintiff has no fundamental right to run for an elective office, see, e.g., Bullock v. Carter, 405 U.S. 134, 142-43 (1972) (no “fundamental right to run for elective office”), and “[a] voter has no right to vote for a specific candidate,” Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (citations omitted), candidate qualification statutes nevertheless implicate “ ‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ ” Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983) (quoting Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). These rights are protected by the First and Fourteenth Amendments. Id.
To assess candidate eligibility requirements, courts apply the AndersonBurdick analysis from Anderson and Burdick v. Takushi, 504 U.S. 428 (1992). Citizens for Legislative Choice, 144 F.3d at 920. If a state imposes “severe restrictions” on a plaintiff’s constitutional right, 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,
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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 burden on Plaintiff is not severe. Plaintiff argues that the signature and deadline statutes combined with the Governor’s Stay-home Order imposes a severe burden on his ability to become a candidate by limiting his ability to collect the required number of signatures, at least 1,000, by the required deadline, April 21. There is a burden imposed by these regulations on Plaintiff, but it is not severe under the circumstances. Plaintiff decided relatively late to become a candidate, only filing his statement of candidacy in October 2019. He asserts that he hired campaign staff, yet by the filing of his complaint on March 31, 2020, he had only collected 700 signatures after 5 months of campaigning. His assertion that he and his staff have been diligent in collecting signatures is not substantiated or persuasive. See, e.g., Storer v. Brown, 415 U.S. 724, 742 (1974) (in assessing ballot access claims by independent candidates, the question is “could a reasonably diligent independent candidate be expected to satisfy the signature requirements”).
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Moreover, Governor Whitmer’s declaration of emergency on March 10, 2020, should have acted as a wake-up call to Plaintiff and his staff to double-down on signature collection efforts. The Stay-home Order was not issued until March 23, meaning Plaintiff had 13 additional days from the declaration of emergency to collect signatures before social interaction was severely curtailed. That should have been sufficient time to collect the few hundred more signatures Plaintiff needed in order to file.
In addition, even after issuance of the Stay-home Order, Defendants are aware that many candidates have continued to collect signatures by switching to the use of regular mail. Candidates can obtain voter lists for the district within which they are running through their local clerk, or through the Bureau of Elections, send voters a petition, ask the voters to sign the petition as a signer and a circulator, and send the petition back to the candidate, usually in a self-addressed, stamped envelope. This process does involve a cost, but candidates are not entitled to free access to the ballot. See, e.g., Libertarian Party of Ky v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016) (“the incidental costs of gathering signatures on petitions do not come close to exclusion from the ballot, and thus do not impose a severe burden on ballot access”). See also Green Party of Arkansas v. Martin, 649 F.3d 675, 683 (8th Cir. 2011) (“Although the Green Party may incur some costs because of its choice to hire individuals to collect signatures, the ballot access scheme does
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not impose severe burdens on the Green Party and Arkansas need not collapse every barrier to ballot access.”)
And in the end, even if Plaintiff is unsuccessful in filing sufficient signatures by the deadline, he has an alternative avenue to the ballot. He can choose to run as a write-in candidate for the Republican Primary in August, which requires no signatures, can be accomplished by mail, and is not due until July 24, 2020. Mich. Comp. Laws § 168.737a. Or he can simply run as a write-in candidate for the November 2020 general election. (Id.). Write-in candidacies have been successful in Michigan, for example, Mike Duggan became Mayor of the City of Detroit through a successful write-in primary campaign in 2013.14 And Winnie Brinks won the Democratic Primary for State Representative in 2012.15
Under these circumstances, the burden on continuing to require Plaintiff to meet these statutory requirements is not severe. Rather, it is somewhere between the minimal and severe burdens discussed in Anderson and Burdick, thus necessitating a flexible analysis. Ohio Democratic Party, 834 F.3d at 627.
14 See, https://www.michiganradio.org/post/duggan-makes-history-winning-writecampaign-napoleon-rallies-supporters. 15 See, https://calvinchimes.org/2012/11/05/2369/.
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2. The State’s interest in the signature and deadline requirements is substantial.
The “right to vote in any manner . . . [is not] absolute,” Burdick, 504 U.S. at 433 (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). 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).
With respect to the signature requirement, the Supreme Court has consistently recognized that states, like Michigan, have an important interest in requiring some preliminary showing of a significant modicum of support before printing the name of a candidate on the ballot; this protects the integrity of the electoral process by regulating the number of candidates on the ballot and avoiding voter confusion. See Jenness v. Forton, 403 U.S. 431, 441 (1971); American Party
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of Texas v. White, 415 U.S. 767, 783 (1974); Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997). The Sixth Circuit has likewise recognized that states have “an important interest in ensuring that candidates demonstrate a ‘significant modicum of support,’ before gaining access to the ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.” Libertarian Party of Kentucky, 835 F.3d at 577. Section 544f advances that important interest in Michigan by requiring Plaintiff to demonstrate he has a significant modicum of public support in the district for his candidacy.
Turning to the filing deadline, as noted above, states have the power to prescribe time, place, and manner restrictions for holding elections. Burdick, 504 U.S. at 433. Here, the filing deadline is not arbitrary or designed to short-change candidates like Plaintiff; it is part of a carefully constructed set of election deadlines extending backward from the date of the election, including the 40th-day deadline for having ballots available to be distributed to absent voters.
And as noted above, Secretary Benson is the filing official for all congressional candidates (with the exception of the Thirteenth District). Thus, the Secretary, through the Bureau of Elections, must canvass all the nominating petitions filed by congressional candidates for the House and the Senate. This is in addition to other candidate filings the Bureau must canvass. Accordingly, the
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Bureau has thousands and thousands of signatures to canvass between April 21 and June 2, 2020, when the slate of candidates must be certified for the August ballot. Infringing on any of the statutory deadlines threatens the integrity of the process.
The April 21 deadline reflects a necessary cog in Michigan’s election machinery that keeps the process running in an orderly manner. The Sixth Circuit has recognized that “easing administrative burdens” on elections officials is “undoubtedly ‘[an] important regulatory interest[ ].’ ” Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (6th Cir. 2016) (citation omitted). The filing deadline advances that important regulatory interest by ensuring that the Secretary of State and her staff have sufficient time to canvass petitions, provide a challenge period, and meet the ballot certification deadline, which triggers final preparations for ballot printing by the counties.
The burden on Plaintiff here is not the result of any statute, but the state of emergency created by the Covid-19 pandemic and the necessary orders limiting social interaction. As the Governor explains in those orders, her actions are necessary to preserve and protect the lives of Michigan’s citizens.16 While providing people like Plaintiff with the opportunity, as opposed to a right, to participate in the political process is important, it is not on par with protecting
16 EO No. 2020-42, available at https://content.govdelivery.com/attachments/MIEOG/2020/04/09/file_attachments/ 1423850/EO%202020-42.pdf.
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lives. With so much disruption already occurring at all levels of government, the
Secretary and the Governor are trying to maintain processes where they can to
limit further disruption and confusion. This includes limiting unnecessary disruptions to the electoral process.17 On balance, and under these circumstances,
requiring candidates, like Plaintiff, to continue to meet their signature and filing
deadlines is not an unconstitutional burden.
C. Plaintiff has not shown he will suffer irreparable harm absent an injunction.
In considering issuing an injunction, courts must consider whether the
plaintiff will suffer irreparable injury without the injunction. Certified Restoration
Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). “To
demonstrate irreparable harm, the plaintiffs must show that . . . 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). Harm is irreparable if it
cannot be fully compensated by monetary damages. Overstreet v. Lexington–
17 Plaintiff notes that the Governor issued Executive Orders extending the canvass of the March 10, 2020, presidential primary election, see https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522936--,00.html, and accommodating the conducting of the May 5, 2020, election to be principally by absent voter ballot, see https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-523400--,00.html. These orders were necessary to address the problems and dangers of in-person canvassing and in-person voting without unduly disrupting the electoral process. The relief Plaintiff seeks here, meanwhile, is not similarly necessary and unduly disruptive, for the reasons set forth in this brief.
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Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir. 2002). Irreparable harm may also exist where a plaintiff can demonstrate a substantial likelihood of success on the merits of the plaintiff’s claim that his or her constitutional right has or will imminently be violated. Elrod v. Burns, 427 U.S. 347, 373-74 (1976).
In his declaration, Plaintiff asserts that the Stay-home Order has impeded or prohibited him from continuing to gather signatures in person. (Doc. 2, TRO Brf, Ex A, Esshaki Dec, PgID 61, 66). He complains that without relief, he will have lost a substantial amount of time and money or will be required to spend “a substantial amount of time and money” to attempt to collect signatures by mail “when there is no evidence that such a strategy would yield even one additional signature.” (Id.) He asserts that his “supporters and [he] will be further injured and will suffer irreparable harm to our voting, speech, and associational rights because [his] name will not appear on the ballot and [they] will not be able to vote for the candidate of [their] choice.” (Id., PgID 66-67).
It is worth noting again that Plaintiff commenced his campaign late, and despite circulating his petitions for 5 months, has only 700 signatures to show for his and his staff’s effort. A late start and questionable diligence certainly places much of his alleged injury on Plaintiff’s shoulders. Regardless, losing time and money is something that every potential candidate faces, whether it’s because he or she failed to make the ballot or lost an election. As far as spending money on a
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mail campaign, as noted above, Defendants are aware that other candidates are doing so, and Plaintiff could certainly solicit contributions from his supporters to support such a campaign. Plaintiff only needs a few hundred more signatures, not the thousands that other candidates must obtain. (Ex 1, Chart). Moreover, it does not appear from his declaration that Plaintiff has even attempted to secure signatures by mail. He can hardly complain about that option without having attempted to use it. These facts do not support a finding of irreparable harm.
As for injury to his and his supporters’ associational rights, irreparable harm only exists if Plaintiff has demonstrated a likelihood of success on the merits of his constitutional claims, which, as argued above, he has not. And 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. The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest.
The remaining factors, “harm to the opposing party and weighing the public interest . . . merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). While there will be no irreparable harm to the Plaintiff 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
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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, and, as discussed above, they serve an important governmental interest. The people of Michigan have a strong interest in having the State’s election laws effectuated. See Maryland, 567 U.S. at *3.
In addition to the State’s concern regarding disruption to the electoral process discussed above, the State has an interest in protecting against the disparate or inequitable treatment of candidates. As noted above, many congressional candidates have already timely filed their nominating petitions, and several did so after the Governor declared a state of emergency and/or after issuance of the Stayhome Order.18 And as to the Eleventh District, the Democratic incumbent and two Republican candidates have already filed.19 All of these candidates have, at least on the face of their filings, met their burden to show the requisite modicum of support for achieving ballot access. Plaintiff’s failure to do so could just as well be the result of a lack of popular support than social-distancing impediments. In that case, granting Plaintiff the relief he seeks acts as a windfall and not equity. This Court should deny Plaintiffs’ request for temporary injunctive relief.
18 See Candidate Listing for August 2020 primary, at https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html. 19 (Id.)
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E. Request if the Court is inclined to grant injunctive relief. Although not stated in his motion or brief in support of injunctive relief, Plaintiff’s complaint asks the Court to enter an order “requiring Defendants to either extend the deadline, decrease the signature requirements, or place Esshaki’s name on the ballot upon his filing of a nominating petition with fewer than the required number of signatures.” (Doc. 1, Compl., PgID 13). If this Court is inclined to grant relief that would include extending or modifying the filing deadline, Governor Whitmer, Secretary Benson and Director Brater respectfully request an opportunity to comment on what a workable deadline would be under the circumstances. Further, if the Court is inclined to grant some other form of relief not already advanced by the Plaintiff in his pleadings, Defendants would likewise request an opportunity to provide this Court with comments.
CONCLUSION AND RELIEF REQUESTED For the reasons stated above, Defendants Secretary of State Jocelyn Benson, Governor Gretchen Whitmer and Director of Bureau of Elections Jonathan Brater respectfully request that this Honorable Court deny Plaintiff’s request for a temporary restraining order.
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Respectfully submitted,

Dated: April 10, 2020

s/Heather S. Meingast Heather S. Meingast (P55439) Assistant Attorney General Attorney 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 April 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

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Case 2:20-cv-10831-TGB-EAS ECF No. 6-1 filed 04/10/20 PageID.122 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,
Plaintiff,
v
GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

No. 2:20-cv-10831 HON. TERRENCE G. BERG MAG. ELIZABETH A. STAFFORD

Defendants. ______________________________________/

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR TRO/PRELIMINARY INJUNCTION

EXHIBIT LIST

1. Chart

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EXHIBIT 1

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OFFICE
U.S. Senator
U.S. Representative in Congress
State Representative
ALL Incumbent Justices or Judges seeking re-election to the same position
Non-incumbent Supreme Court Justice Non-incumbent Court of Appeals Judge Non-incumbent Circuit Court Judge
Non-Incumbent District Court Judge
Non-Incumbent Probate Court Judge
State Education Boards (SBE, MSU, UM, WSU) County Executive, County Clerk, County Treasurer, County Register, County Clerk/Register, County Sheriff, County

Filing Deadline Citation 168.93
168.133
168.163
168.392a (Sup. Ct.); 168.409b (COA); 168.413a (Circuit Court);
168.433a (Probate Court);
168.467c 168.590c 168.409b 168.413
168.467b
168.433
168.282
168.193; 168.254;

POPULATION RANGE
Statewide
750,000
85,000
Varies; up to statewide

CURRENT SIGNATURE REQUIREMENT (MCL 168.544f)
*15,000 signatures (D, R) *12,000 signatures (NPA)1 *No filing fee option *1,000 signatures (D, R) *3,000 signatures (NPA) *No filing fee option *200 signatures (D, R) *600 signatures (NPA) *$100 filing fee option for D, R *Files Affidavits of Identity, Candidacy *No signatures or filing fee required

Statewide 2m – 5m

*Convention (D, R) *12,000 signatures (NPA) *6,200 signatures

Varies; up to 2m
Varies; up to 1m
Varies; up to 2m
Statewide

*largest co. requires 4,000 signatures *smallest co. requires 40 signatures *largest dist. requires 2,000 signatures *smallest dist. requires 40 signatures *largest co. requires 4,000 signatures *smallest co. requires 40 signatures *Convention (D, R) *12,000 signatures (NPA)

Varies; up to 2m

*largest co. requires 2,000 signatures (D, R) *smallest co. requires 20 signatures (D, R)

1 NPA = no party affiliation. The 12,000 signature requirement is established by a court order in Graveline v. Johnson.

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OFFICE
Prosecuting Attorney, County Drain Commissioner, County Road Commissioner
County Commissioner
Township Supervisor, Township Clerk, Township Treasurer, Township Trustee, Township Library Board Member City Mayor, City Clerk, City Treasurer, City Council Member2 Village President, Village Clerk, Village Treasurer, Village Trustee3 Community College Trustee,4 Intermediate School District Board Member, School District Board Member
District Library Board Member5
Precinct Delegate

Filing Deadline Citation
168.193 168.349
168.321; 168.322 168.381 168.303
168.590c 168.624

POPULATION RANGE
Varies Varies; up to
250,000
Varies Varies Varies; up to
2m
Varies Varies

CURRENT SIGNATURE REQUIREMENT (MCL 168.544f)
*signature requirements for NPA candidates vary from 60 to 6,000 *$100.00 filing fee option for D, R *signature requirements vary *Filing fee option for D, R ($100.00) *largest township requires 500 signatures (D, R) *smallest township requires 3 signatures (D, R) *Filing fee option for D, R ($100.00) *requirements established by city charter
*signature requirements vary *no filing fee option
*WCCC requires 250 signatures, has no filing fee option *largest districts (other than WCCC) require 40 signatures *smallest districts require 6 signatures *$100.00 filing fee option for all candidates except WCCC *variable signature requirements *$100.00 filing fee option *files Affidavit of Identity only (D, R)

2 The schedule for city elections is established by city charter. Some cities elect city offices annually or in the odd
or even year; some have primary elections and others file directly to the general election. 3 Files directly to the general election; filing deadline elapses July 21, 2020. 4 For all community college districts except the Wayne County Community College (WCCC) District, candidates file
directly for the general election ballot by July 21, 2020. WCCC has a nonpartisan primary and filings are due by
April 21, 2020. 5 Filing deadline does not elapse until July 16, 2020.

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 10 filed 04/14/20 PageID.156 Page 1 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

Case No. 2:20-cv-10831

Plaintiff,

Hon. Terrence G. Berg

vs.

Mag. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of

Michigan, JOCELYN BENSON, Secretary

of State of Michigan, and JONATHAN

BRATER, Director of the Michigan

Bureau of Elections, in their official

capacities,

Defendants.

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

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I. INTRODUCTION Defendants would have this Court believe that Esshaki and other similarly situated candidate are not severely burdened and do not face irreparable harm by Defendants’ enforcement of M.C.L. §§ 168.133 and 168.544(f) in combination with Governor Whitmer’s Executive Order 2020-21 (the “Stay-home Order”). Nothing could be further from the truth. Defendants insist on enforcing the signature requirement and filing deadline, notwithstanding that the Stay-home Order has stripped candidates of the means to satisfy those requirements by making it a crime for them to leave their homes to collect signatures. In combination, these ballot access requirements impose severe burdens on candidates like Esshaki, making it nearly impossible for them to get their names printed on the ballot and leaving them with no meaningful way to run for public office. While Esshaki has demonstrated a strong likelihood of success on the merits of his constitutional claim, Defendants have utterly failed to show that the State has a compelling or substantial interest in refusing to modify the ballot access requirements. Moreover, Defendants deny that Esshaki will suffer irreparable harm in the absence of injunctive relief, ignoring altogether that without relief Esshaki will be robbed of the ability to run for office in a meaningful way or, alternatively,
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will be forced to spend an exorbitant amount of money on a mail campaign that is entirely unproven in these unprecedented times.
Because Esshaki has demonstrated a strong likelihood of success on the merits of his claim, and because he will suffer irreparable harm without immediate injunction relief, Esshaki is entitled to relief from this Court.
II. Esshaki has demonstrated a strong likelihood of success on the merits because he has shown that he is severely burdened by the combination of the signature and deadline requirements, and the Stay-home order.
Defendants argue that Esshaki has failed to demonstrate a strong likelihood of success on the merits because the ballot-access statutes in combination with the Stay-home Order do not impose a severe burden on Esshaki. They are wrong.
First, Defendants argue that Governor Whitmer’s declaration of an emergency six weeks prior to the filing deadline should have “acted as a wake-up call” to cause Esshaki to “double-down” on signature collection efforts before the Stay-home Order was announced thirteen days later on March 23, 2020. (ECF No. 6 at PageID).
As an initial matter, this is a tacit admission that Defendants have effectively imposed an early filing deadline and a further acknowledgement of the severe burdens Esshaki and other candidates face in trying to collect signatures while the Stay-home Order is in place. Further, these assertions are wholly irrelevant to the issue here. To suggest that Esshaki could have obtained signatures prior to the
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Stay-home Order without severe burden says nothing whatsoever about the burdens Esshaki faces in his attempts to collect signatures and meet the filing deadline while the Stay-home Order is in effect.
Second, Defendants argue that Esshaki is not severely burdened because he can obtain signatures by mail. Defendants ignore, however, the incredible expense and uncertainty associated with this option. Indeed, the Esshaki campaign sent nearly 1,000 petitions by mail on or around April 2, 2020, at a cost of roughly $1.75 per piece. To date, the campaign has received approximately fifteen signatures by mail. That is roughly $115 dollars per signature.1 Thus, Esshaki would be required to spend around $45,000 to obtain the additional 400 signatures needed. These would not be mere “incidental costs.”
Additionally, advocating for the use of a mail campaign to obtain signatures assumes that the postal service will continue to operate at normal capacity, notwithstanding that several post offices, including Esshaki’s home post office, are temporarily closed or have decreased the frequency of mail delivery in half.2 This means that it is taking the post office twice as long to deliver both outgoing and incoming mail.
1 For purposes of comparison, the first 700 signatures Esshaki collected cost nothing except the printing fees for the petition forms. 2 See Fox2 News article located at: https://www.fox2detroit.com/news/some-semichigan-zip-codes-to-receive-mail-every-other-day-due-to-covid-19.
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Third, and equally unavailing, Defendants argue that even if Esshaki does not have his name printed on the ballot, he is not severely burdened because he can run as a write-in candidate. (ECF No. 6 at PageID 112). This ignores reality. Indeed, the Supreme Court has indicated that "[t]he realities of the electoral process ... strongly suggest that ‘access’ via write-in votes falls far short of access in terms of having the name of the candidate on the ballot." Lubin v. Panish, 415 U.S. 709, 719 n. 5, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); see also Anderson, 460 U.S. at 799 n. 26, 103 S.Ct. 1564 ("We have previously noted that [a write-in] opportunity is not an adequate substitute for having the candidates name appear on the printed ballot"). And in 2018, in Graveline v. Johnson, this Court recognized that because Michigan’s statutory scheme prevented the plaintiff from having his name on the ballot, the plaintiff and his voters had no alternative means to exercise their rights to cast their votes effectively, and that writing in the plaintiff’s name was not an “adequate substitute.” 336 F. Supp. 3d 801, 811 (E.D. Mich. 2018).
III. Defendants’ articulation of the State’s asserted interests in enforcing the ballot-access scheme and its chosen means of pursuing those interests while the Stay-home Order is in effect are overstated and disingenuous.
The ballot-access statutes in combination with the Stay-home Order impose severe burdens (as opposed to “more-than-minimal but less-than-severe”) on Esshaki’s constitutional rights. Because of the severity of those burdens, the State’s interest in enforcing ballot-access statutes must be “narrowly drawn to advance a
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state interest of compelling importance.” See Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Defendants argue that burdens imposed on Esshaki are somewhere between minimal and severe, thus asserting that the more “flexible” standard applies here, which weights the burden imposed on Esshaki against the State’s asserted interest. (ECF No. 6 at PageID 110). Under this standard, Defendants argue that the State’s interest in regulating the voting process and requiring candidates to obtain signatures to have their names printed on the ballot outweighs the burden imposed on Esshaki. Defendants are wrong.
No one is denying that the State has an interest in requiring candidates to obtain signatures to have their names on the ballot. Under normal circumstances, Esshaki could not complain that the burden of gathering signatures outweighs the State’s interest. But these are not normal circumstances, and Defendants all but ignore the combined effect of the statutes and the Stay-home Order.
The issue here is whether the State’s interest in enforcing the statutes in combination with the Stay-home order outweighs the burden (or impossibility) Esshaki faces in his attempts to comply with the statutory requirements to have his name printed on the ballot. See Graveline, 336 F. Supp. 3d at 810 (E.D. Mich. 2018) (noting that “the Court must consider the ‘combined effect’ of the challenged regulations, rather than each statute's requirement by itself.”).
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Under any standard of review, requiring Esshaki to obtain at least 1,000 signatures by April 21, 2020, during a state-wide quarantine, imposes a substantial burden on Esshaki because he has been and is prohibited from leaving his home until after the filing deadline.
i. Defendants’ interest in refusing to modify the filing deadline does not outweigh the burdens imposed on Esshaki.
Defendants argue that the State has an important interest in enforcing the filing deadline because an extension would leave Secretary Benson without “sufficient time to canvass the petitions, provide a challenge period, and meet the ballot certification deadline.” (ECF No. 6 at PageID 115). Defendants further argue that providing citizens “the opportunity” to participate in the political process is not “on par with protecting lives.” (ECF No. 6 at PageID 115-16). This line of reasoning is disingenuous at best.
Indeed, these considerations did not prevent Defendants from (i) extending the canvassing deadline for the March 10, 2020 primary election; and (ii) ordering our local May elections to be conducted by mail. Interestingly, Defendants’ Response Brief argues that these actions were necessary to “address the problems and dangers of in-person canvassing and in-person voting without unduly disrupting the electoral process.” (ECF No. 6 at PageID 116). Yet when it comes to congressional and judicial candidates’ involvement in that very same process, Defendants refuse to make any accommodations to avoid a disruption and are
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willing to go a step further, effectively eliminating that process altogether, without any justification whatsoever.
ii. Defendants’ interest in refusing to modify the signature requirement does not outweigh the burdens imposed on Esshaki.
Even if Defendants are correct (they are not), and the State’s interest in enforcing the deadline is of particular importance, Defendants utterly fail to address what important State interest exists to justify their refusal to decrease the number of signatures candidates are required to gather during these unprecedented circumstances. Defendants’ only argument is that a candidate’s ability to gather signatures demonstrates that he has a “modicum of support” before his name is printed on the ballot. But it is at least equally true that a candidate who has collected seventy percent of the required number of signatures six weeks before the actual filing deadline also has a “modicum of support.” See generally Jenness v. Forton, 403 U.S. 431 (1971).
The Defendants’ arguments fail to show that the State has a substantial interest in refusing to modify the filing deadline, the signature requirements, or some combination of both. On balance, the burden the statutes and Stay-home Order place on Esshaki and similarly situated candidates are substantially greater than the State’s asserted interests in refusing to modify the deadline and signature requirement. Thus, even under the more “flexible” analysis advocated for by
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Defendants, Esshaki has demonstrated a strong likelihood of success on the merits and injunctive relief is both warranted and appropriate.
IV. Absent injunctive relief, Esshaki will suffer irreparable harm because he will not have his name printed on the ballot and will be forced to spend tens of thousands of dollars in an attempt to collect signatures by mail.
Once again, Defendants’ argument misses the mark. Defendants claim that Esshaki will not suffer irreparable harm because he “had a late start and questionable diligence,” which “places much of the injury on [his] shoulders.” (ECF No. 6 at PageID 117). In reality, Esshaki was on track to collect 2,000 signatures before the filing deadline. Thus, not only are the Defendants’ allegations speculative and false, they are wholly irrelevant to determining whether Esshaki will suffer irreparable harm. Indeed, by Defendants’ own admission, the standard to determine the existence of irreparable harm requires Esshaki to show that he “will suffer actual and imminent harm.” (ECF No. 6 at PageID 116). Esshaki has done this.
Defendants next argue that Esshaki will not suffer irreparable harm because he can seek signatures through the mail. As explained above, however, this is not a viable or proven option under the circumstances. It is expensive, unproven, and wrought with difficulties in light of the current crisis this country is facing. The Defendants’ assertion that other candidates are conducting mail campaigns to gather signatures proves nothing except that Defendants’ refusal to modify the
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ballot-access statutes are likely causing those candidates to also suffer irreparable harm. Moreover, Defendants have failed to point out one example where a candidate has successfully obtained the required number of signatures through the mail.
While the thrust of Defendants’ argument focuses on the efficacy of a mail campaign, they ignore entirely the primary harm Esshaki complains of—namely, not having his name on the ballot. This would seriously harm Esshaki and his supporters in the exercise of their First and Fourteenth Amendment rights. See Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (stating, “[r]estrictions on access to the ballot impinge on the fundamental right to associate for the advancement of political beliefs and the fundamental right to vote”). Given the gravity associated with the violations of these rights, the harm Esshaki will suffer is readily apparent. Tellingly, Defendants make no attempt to address or refute this.
V. Relief Requested While it is certainly within the purview of this Court to grant a range of equitable remedies, reducing the signature requirement by forty percent for all candidates is preferred because it would impose the least disruption to State election processes (as opposed to changing the filing deadline). Moreover, a reduction in signatures is not only consistent with, but required by, the “flexible” analysis that Defendants urge this Court to apply here. That analysis requires
9

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courts to weigh “the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (internal citations omitted). That analysis also provides a guiding principle that can be used to “draw the line” at a certain number of signatures because as the burden is lightened for candidates, the weight of the State interests will increase.
Here, a reduction in signatures would reduce the burden on Esshaki and other similarly situated candidates. It would simultaneously continue to protect the State’s interest in ensuring that a candidate has a “modicum of support” prior to having his or her name printed on the ballot because candidates who have obtained sixty percent of the required signatures at the time the Stay-home Order was implemented have undoubtedly demonstrated their support. Moreover, fewer signatures would ease the burdens of the State during the canvassing of signatures, allowing the State to spend more time on each petition, thereby strengthening the integrity of our election process.
VI. CONCLUSION WHEREFORE, Plaintiff Esshaki respectfully requests that this Court enter
a temporary restraining order and/or a preliminary injunction against Defendants restraining them from enforcing the Ballot Access Statutes, reducing the signature
10

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requirements to sixty percent of the statutory requirement for all candidates, and such other equitable relief as this Court deems appropriate.

Dated: April 14, 2020

Respectfully submitted,
LAW OFFICES OF GREGORY J. ROHL, P.C.
By: /s/ Gregory J. Rohl (P39185) Gregory J. Rohl 41850 W. Eleven Mile Road, Suite 110 Novi, MI 48375 (248) 380-9404 gregoryrohl@yahool.com Attorney for Plaintiff

11

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CERTIFICATE OF SERVICE THE UNDERSIGNED certifies that on the 14th day of April, 2020, the foregoing paper was electronically filed with the Clerk of the Court using the ECF system.
/s/ Amanda Perkins Amanda Perkins Legal Assistant
12

 
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 Case 2:20-cv-10831-TGB-EAS ECF No. 18 filed 04/15/20 PageID.299 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

Plaintiff,

No. 2:20-cv-10831 HON. TERRENCE G. BERG MAG. ELIZABETH A. STAFFORD

v

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

and

KYLE KENLEY KOPITKE, Pro Se Intervenor,
vs.
GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Gregory J. Rohl (P39185) Attorney for Plaintiff 41850 W. Eleven Mile Road, Suite 110 Novi, Michigan 48375 248.380.5362
Heather S. Meingast (P55439) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909 517.335.7659 /
Kyle Kenley Kopitke, Pro Se 1506 N. Grand Traverse, Flint, MI 48503
INTERVENOR’S COMPLAINT FOR EMERGENCY DECLARATORY AND INJUNCTIVE RELIEF
Nature of the Case

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1. This is an action to declare unconstitutional, enjoin and/or modify Michigan’s in-person signature collection and witnessing requirements for independent and third-party candidates in Michigan seeking to qualify for the November 3, 2020 general election in light of the current public health emergency caused by the pandemic, COVID-19 and the Governor's emergency orders effectively shutting down the State.

Signature Requirements for Candidates

2. The State of Michigan requires 30,000 valid signatures for an Independent Presidential candidate to be placed on the November 3, 2020 general election ballot. On December 22, 2019, U.S. District Court Judge Victoria A. Roberts struck down that 30,000 valid signature requirement and replaced it with a 12,000 valid signature amount, until the Michigan State Legislature creates a different amount. Her order does not specifically address requirements for Independent Presidential candidates. Graveline v Benson, e.d.,2:18cv-12354.

PARTIES

3.

Intervenor Kyle Kenley Kopitke, native of Illinois and has lived in Flint, Michigan for

over the last ten years. Kopitke is an independent candidate seeking election at the November 3,

2020 election to the office of President of the United States of America. Kopitke served in the

United States Army during the Cold War, his father Raymond served in the United States Marine

Corps during World War II; his mother Dorothy served as a cadet Nurse during World War II;

Case 2:20-cv-10831-TGB-EAS ECF No. 18 filed 04/15/20 PageID.301 Page 3 of 10
his grandfather Frederick Rieman served in the United States Army during World War I. Kopitke served in the United States Peace Corps and performed diplomatic work therein. Kopitke donated a kidney to his brother in 1976. Kopitke served as President of Citizens Against the Burn, which successfully stopped the first time burning of contaminated cyanide chips on American soil. Kopitke holds a Doctorate in Public Administration and an MBA. He has qualified for the ballot as a candidate for President in the State of Colorado, and has an appeal pending in the U.S. Court of Appeals for the Fourth Circuit (Kopitke v. Bell, 19-2355) challenging North Carolina’s March petition deadline and 70.000 signature requirement for independent statewide candidates. (Oral argument tentatively set for week of May 5th), as well as an Intervneor pleading in Case No. 1: 20-cv-02112 in Illinois regarding ballot access signature protocols due to the pandemic.
4. Intervenor-Defendants (hereinafter: “Defendants”), GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities.
5. At all times relevant to this action, Defendants were engaged in state action under color of state law.
6. Defendants are being sued in their official capacities for declaratory and injunctive relief under

Case 2:20-cv-10831-TGB-EAS ECF No. 18 filed 04/15/20 PageID.302 Page 4 of 10
42 U.S.C. § 1983 and 28 U.S.C. § 2201, as well as costs and attorney’s fees under 42 U.S.C. § 1988(b).
JURISDICTION 7. Jurisdiction in this case is predicated on 28 U.S.C. § 1331, this being a case arising under the Constitution of the United States and 42 U.S.C. § 1983.
VENUE
8. Venue is proper in this District under 28 U.S.C. 1391(b) because a substantial part of the events giving rise to Plaintiffs’ claims occurred in the Eastern District of Michigan.
FACTS
9. Intervenor realleges the items in the Plaintiffs’ Complaint are valid.
Impossibility of Circulation by Intervenor 10. As of 4:20 PM, April 14, 2020, over 1,000 citizens of Michigan have died during the pandemic.

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11. The Governor has issued a rule that residents cannot go into other homes or residences, and must stay inside unless work in certain critical fields. This makes petition signature gathering impossible.
12. The CDC has stated that the virus has been found active as far as 13 feet from infected persons, making the “6 foot distance” guideline lacking.
13. Researchers in China found that the virus is spread also on shoes as it is tracked into other locations.
14. Any attempt to collect signatures is a danger to the lives of the petition circulators, the voters being asked to sign petitions, the candidates, the Election Officials that have to check the signatures, and the medical staff that will have to treat the newly infected caused by the process of collecting signatures. There is a real danger that the petition circulators bring the virus home from them and may infect their family members.
15. The virus has been found to be active spreading in the air, as well as on plastic and cardboard (paper products) and metal from 2 days to 5 days (different studies show different amounts). The virus could be active on pens and signature sheets.
16. Again, the Governor has ruled people should stay in their home to stop the spread of the virus.

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Injury-in-Fact Caused Intervenor 17. Michigan, together with the COVID-19 outbreak and the Governor's orders, directly cause injury-in-fact to Intervenor and his First and Fourteenth Amendment rights.

18. Intervnor’s injuries are fairly traceable to the Michigan laws requiring in person signature collection for candidates.

19. This Court has the power to properly redress Intervenor’s injuries by issuing prospective injunctive and declaratory relief prohibiting enforcement of Michigan’s signature requirements for candidates for office for the November 3, 2020 general election.

20. This Court may properly redress Intervenor’s injuries by directing Defendants to accept for the November 3, 2020 general ballot the nominating papers of Intervenor, Kyle Kenley Kopitke.
FIRST CAUSE OF ACTION FIRST AMENDMENT
21. All previous paragraphs and allegations are incorporated herein.

22.

Under present circumstances, Illinois's ballot-access requirements for independent

candidates and new party candidates for President of the United States violate rights guaranteed

to Intervnor by the First and Fourteenth Amendments to the United States Constitution, as

enforced through 42 U.S.C. § 1983.

23. A real and actual controversy exists between the parties.

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24. Intervenor has no adequate remedy at law other than this action for declaratory and equitable relief.

25. Intervenor is suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.

SECOND CAUSE OF ACTION

FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE 26. All previous paragraphs and allegations are incorporated herein.

27.

Under present circumstances, Illinois's ballot-access requirements for independent

candidates for President of the United States violate rights guaranteed to Intervenor by the

Equal Protection Clause of the Fourteenth Amendments to the United States Constitution, as

enforced through 42 U.S.C. § 1983.

28. A real and actual controversy exists between the parties. 29. Intervenor has no adequate remedy at law other than this action for declaratory and equitable relief. 30. Intervenor is suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
DEMAND FOR RELIEF WHEREFORE, the Intervenor respectfully prays that this Court: (1) Assume original jurisdiction over this case;

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(2)

Issue a temporary restraining order and/or preliminary injunction (i) prohibiting

enforcement of Michigan's supporting signature requirements for candidates for office for

Michigan's November 3, 2020 general election; (ii) directing Defendants to accept Intervenor

Kyle Kenley Kopitke’s nominating papers for the November 3, 2020 general election without

requiring supporting signatures from voters; and (iii) directing Defendants to place

Intervenor Kopitke’s name on the Michigan November 3, 2020 general election ballot.

(3) Issue a declaratory judgment stating that, in light of the current public health emergency

caused by COVID-19 and executive orders requiring that Michigan citizens stay at home and

shelter in place, Michigan's supporting signature requirements for independent candidates for

office cannot be constitutionally enforced under the First and Fourteenth Amendments, that

Defendants must accordingly accept Intervenor Kopitke’s nominating papers for the November

3, 2020 general election ballot without requiring supporting signatures from voters, and that

Defendants must accordingly place Intervenor Kopitke’s name on the Michigan November 3,

2020 general election ballot.

(4)

Issue a permanent injunction (i) prohibiting enforcement of Michigan's supporting

signature requirements for candidates for office for Michigan's November 3, 2020 general

election; (ii) directing Defendants to accept Intervenor Kopitke’s nominating papers for the

November 3, 2020 general election without requiring supporting signatures from voters; and

(iii) directing Defendants to place Intervenor Kopitke’s name on the Michigan November 3,

2020 general election ballot.

(5) Order Defendants to pay to Intervenor’s costs and a reasonable attorney’s fees under 42 U.S.C. § 1988(b); and

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(6) Retain jurisdiction over this matter and order Defendants to provide to Intervenor any additional relief the Court deems just.

APOLOGY TO THE COURT AND VARIOUS COUNSELS I apologize to the court and counsels for mistakes in formatting and other such errors; requesting some latitude often given to Pro Se filings.

Kyle Kenley Kopitke 1506 N. Grand Traverse Flint, MI 48503 810-424-0772

Respectfully submitted,
/s/ Kyle Kenley Kopitke Pro Se

CERTIFICATE OF SERVICE begins on the next page

CERTIFICATE OF SERVICE

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This will certify service of the foregoing instrument was emailed to the Clerk of Court for Justice Berg on April 14, 2020. A copy will be emailed to: Heather S. Meingast (P55439) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909 517.335.7659 Email: meingasth@michigan.gov
Gregory J. Rohl (P39185) Attorney for Plaintiff 41850 W. Eleven Mile Road, Suite 110 Novi, Michigan 48375 248.380.5362 (I am looking for his email address).
VERIFICATION OF INTERVENOR (pursuant to 28 U.S.C. Sec. 1746)
I, Kyle Kenley Kopitke, verify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on April 14, 2020 s/Kyle Kenley Kopitke Kyle Kenley Kopitke Intervenor

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 23 filed 04/20/20 PageID.321 Page 1 of 40

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position in Wayne County and in her individual capacity.
Plaintiffs,

2:20-CV-10831-TGB
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

vs.

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

In normal times, a candidate for United States Congress in Michigan’s Eleventh Congressional District must collect one thousand signatures from registered voters in order to have his or her name appear
1

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on the primary ballot. Candidates typically gather these signatures doorto-door, or in high-traffic public places like outside malls, grocery stores, crowded school or community events, public rallies, or places of worship. Under Michigan’s statute, the signatures are due on the fifteenth Tuesday before the August 4th primary. This year, signatures are due on April 21, 2020.
Unfortunately, these are not normal times. On March 10, 2020, Michigan Governor Gretchen Whitmer declared a state of emergency based on the serious threat to public safety posed by the COVID-19 or “coronavirus” pandemic. In less than four months, since the first reported case of the disease on American soil in January,1 this highly contagious novel virus has taken the lives of more than thirty-four thousand Americans, of whom more than two thousand were residents of the State of Michigan.2 In addition to causing thousands of deaths, the pandemic has upended the daily routines of hundreds of millions as they
1 Michelle L. Holshue, et al., First Case of 2019 Novel Coronavirus in the United States, 382 New Eng. J. Med. 929 (2020). 2 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Apr. 19, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last accessed Apr. 19, 2020).
2

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sheltered at home, causing one in four small businesses to close,3 and 22 million Americans to lose their jobs.4 Since March 23, 2020, pursuant to Executive Order 2020-21, the State of Michigan has been on lockdown: all nonessential in-person work has been prohibited, as have all public and private gatherings of persons not part of the same household. Malls are closed, schools and churches have moved to social media solutions such as Zoom, and any candidate trying to canvass door-to-door to attempt to gather signatures today would be committing a misdemeanor offense.
Yet, the State insists on enforcing the signature-gathering requirements as if its Stay-at-Home Order responding to the ongoing pandemic had no impact on the rights of candidates and the people who may wish to vote for them. The plaintiff5 in this matter, Eric Esshaki, is running for United States Congress in Michigan’s Eleventh
3 Special Report on Coronavirus and Small Business, U.S. Chamber of Comm. & MetLife, Apr. 3, 2020. 4 Heather Long, U.S. now has 22 million unemployed, wiping out a decade of job gains, Wash. Post (Apr. 16, 2020), https://www.washingtonpost.com/business/2020/04/16/unemployment-claimscoronavirus/?outputType=amp. 5 Since oral argument on April 15, 2020, the Court has granted emergency motions to intervene from two additional plaintiffs, Mr. Savich and Ms. Beard. Both allege that their legal positions are substantively identical to Mr. Esshaki, but because of the emergency nature of these proceedings, Defendants have not yet had opportunity to respond to Mr. Savich’s or Ms. Beard’s allegations specifically. Accordingly, this Order focuses primarily on Mr. Esshaki’s arguments, and refers to him as “Plaintiff”.
3

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Congressional District. He states that he has gathered more than seven hundred of the one thousand signatures he needs to get on the primary ballot. He contends that because of the Stay-at-Home Order, he was effectively prohibited from collecting the remaining three hundred signatures he needed in time to meet the April 21 deadline, and that consequently he will be barred from having his name appear on the primary ballot. Under these unique historical circumstances, as will be explained in detail below, the Court finds that the State’s actions in the form of enforcing both the Stay-at-Home Order and the statutory ballotaccess requirements, operate in tandem to impose a severe burden on Plaintiff’s ability to seek elected office, in violation of his First and Fourteenth Amendment rights to freedom of speech, freedom of association, equal protection, and due process of the law. Consequently, the Motion for Preliminary Injunction will be granted.
I. BACKGROUND Plaintiff Eric Esshaki is a registered nurse and practicing attorney running as a Republican candidate for United States Congress in Michigan’s Eleventh Congressional District. Compl. ¶ 2, ECF No. 1, PageID.2. He filed his statement of candidacy with the Federal Election
4

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Commission on October 31, 2019. Id. ¶ 18, PageID.5. He is required by statute to collect one thousand valid signatures from registered voters by April 21, 2020 to qualify to have his name placed on the August 4, 2020 primary ballot. Mich. Comp. Laws §§ 168.133, 168.544f (collectively “the signature requirement”). By March 23, 2020, Esshaki’s campaign had already collected approximately seven hundred signatures. Compl. ¶ 22, ECF No. 1, PageID.6.
On March 10, 2020, Michigan’s first two COVID-19 cases were announced and Governor Gretchen Whitmer declared a state of emergency. See Mich. Exec. Order 2020-4 (Mar. 10, 2020) (“State of Emergency Declaration”). The State of Emergency Declaration cautioned citizens that COVID-19 “is a respiratory disease that can result in serious illness or death . . . and can easily spread from person to person.” Id. By March 23, 2020, the number of diagnosed coronavirus cases in Michigan had grown to more than nine hundred and thirteen6 and the Governor signed Executive Order 2020-21 (the “Stay-at-Home Order”). The Stayat-Home Order suspended in-person non-essential commercial activities and directed residents to “remain at home or in their place of residence

6

Daily

Counts,

Michigan.gov,

https://www.michigan.gov/coronavirus/0,9753,7-406-

98163_98173_99207---,00.html (last accessed Apr. 17, 2020).

5

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to the maximum extent feasible.” Mich. Exec. Order No. 2020-21 (Mar. 23, 2020). It also prohibited all “public and private gatherings of any number of people” not part of a single household and ordered that persons performing essential activities outside of their homes remain six feet apart. Id. The Stay-at-Home Order does not contain any exception for campaign workers. On April 9, 2020, the Governor signed a second executive order extending the Stay-at-Home Order through the end of April. See Mich. Exec. Order No. 2020-42 (Apr. 9, 2020). A violation of the Stay-at-Home Order is a misdemeanor criminal offense. Id.; Mich. Comp. Laws § 10.33.
Plaintiff and the numerous candidates who have expressed an interest in the outcome of this case7 maintain that the Stay-at-Home Order has for all practical purposes denied them the opportunity to
7 The Court has received a number of amicus curiae briefs and motions to intervene from other candidates who, like Plaintiff, say they have been unable to gather signatures because of the Stay-atHome Order. They include: Mr. Daniel Finley, a judicial candidate for Michigan’s Twenty-Second Circuit (ECF No. 13), Mr. Matt Savich, a judicial candidate for Michigan’s Forty-Seventh District Court (ECF No. 11), Ms. Deana Beard, a judicial candidate for Michigan’s Third Circuit Court (ECF No. 17), and Mr. Kyle Kopitke, an independent presidential candidate (ECF No. 18). In addition, the American Civil Liberties Union filed an amicus curiae brief in support of Plaintiff (ECF No. 15), and Ms. Whittney Williams, a competitor of Mr. Esshaki also seeking to run as the Republican candidate for United States Congress in Michigan’s Eleventh Congressional District, filed an amicus curiae brief opposing relief for Plaintiff (ECF No. 21). The Court also received correspondence from Mr. Bob Carr, a Republican candidate for U.S. Senate, who provided a list of candidates that he appeared to be citing as similarly situated, but provided no evidentiary support for his claim. By separate order, the Court will grant these pending motions to intervene and file amicus briefs, with the exception of the motion of proposed Plaintiff Kopitke, because the relief he seeks differs significantly from that of the other candidates.
6

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collect the signatures that they needed during the timeframe between March 23 and April 21. Mot. for Prelim. Inj., ECF No. 2, PageID.50. Plaintiff contends that the combination of the State’s strict enforcement of statutory signature gathering requirements with the Governor’s Stayat-Home Order has placed a severe burden on his ability to run for elected office—in violation of the freedom of speech, freedom of association, equal protection, and due process rights guaranteed to him by the First and Fourteenth Amendments. Compl. ¶ 46, ECF No. 1, PageID.11. Plaintiff argues that the burden placed on him by the State’s actions is unconstitutional because the State has neither a compelling interest in enforcing the signature requirement, nor has it narrowly tailored its ballot access requirements to effectuate any compelling interest it may have. ECF No. 2, PageID.55.
Defendants contend that enforcement of the signature requirement in light of the Governor’s Stay-at-Home Order has only moderately burdened Plaintiff’s ability to run for elective office. Defs. Resp., ECF No. 6, PageID.112. Defendants argue that Plaintiff entered the race relatively late, that he was not diligently collecting signatures before the Stay-at-Home Order was issued, that he should have “doubled down” on
7

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his signature-collection efforts during the period between the March 10th State of Emergency Declaration and the March 23rd Stay-at-Home Order, that he could have collected signatures by mail, and that even if he fails to get on the ballot, he can always run as a write-in candidate. Id. at PageID.110-12.
Defendants assert that any burden placed on Plaintiff’s ability to run for elective office by the enforcement of the State’s signature requirements must be weighed against the State’s substantial interest in ensuring that candidates have a significant modicum of support before their names are printed on the ballot. Id. at PageID.113. Defendants argue that a threshold showing of support through signature gathering helps protect the integrity of the electoral process by limiting the number of candidates on the ballot and avoiding voter confusion. Id. Defendants further assert that the State has an interest in maintaining April 21, 2020 as the filing deadline because that date “ensur[es] that the Secretary of State and her staff have sufficient time to canvass petitions, provide a challenge period, and meet the ballot certification deadline, which triggers final preparations for ballot printing by the counties.” Id. at PageID.115.
8

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The Court heard oral argument on this motion on April 15, 2020, utilizing the social media platform Zoom. At the hearing, both parties referenced proposed remedies that each had submitted to the Court in camera. Plaintiff seeks an order reducing the required number of signatures by forty percent, so that candidates would only need to collect sixty percent of the required number. Defendants proposed postponing the filing date to May 8, 2020, and offering candidates an approved method to collect signatures by e-mail, and submit them using the Internet, but they opposed any reduction in the required number of signatures. The Court will consider these proposed remedies together with the relevant facts and applicable law in reaching its decision.
II. LEGAL STANDARD a. Preliminary Injunction
The Court must consider four factors when ruling on a motion for a preliminary injunction: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm absent the injunction; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is
9

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advanced by the issuance of the injunction. Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir. 2012). No one factor is dispositive; rather the court must balance all four factors. In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). A preliminary injunction is an extraordinary remedy that will only be granted if Plaintiff shows that circumstances clearly demand it. Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002).
III. DISCUSSION a. Likelihood of Success on the Merits
Under Michigan election law, candidates for certain elective offices must comply with statutory signature gathering requirements enumerated in Section 168.544f. Mich. Comp. Laws § 168.544f. The number of signatures required depends on the population of the district and whether or not that candidate is running as a member of a party. Mich. Comp. Laws § 168.544f. Congressional candidates are also governed by Section 168.133, which sets the April 21, 2020 filing deadline. Mich. Comp. Laws § 168.133. Substantially similar statutes set April 21, 2020 as the petition filing date for other offices. See, e.g., Mich. Comp. Laws § 168.93 (U.S. Senator); Mich. Comp. Laws § 168.93
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(judge of Circuit Court); Mich. Comp. Laws § 168.467b (judge of District Court).
While there is no fundamental right to run for elective office, the Supreme Court has recognized that ballot access laws such as Sections 168.133 and 168.544f “place burdens on two different, although overlapping, kinds of rights – the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Ballot access restrictions affect candidates and individual voters alike because absent recourse to state-wide proposals or referenda, “voters can assert their preferences only through candidates or parties or both.” Lubin v. Panish, 415 U.S. 709, 716 (1974). “By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). As the Supreme Court explained in the seminal ballot access case of Anderson v. Celebrezze, 460 U.S. 780, 786 (1983), “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws
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that affect candidates always have at least some theoretical correlative effect on voters.” (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
When considering the constitutionality of ballot access laws, courts apply the framework established in Anderson, 460 U.S. at 780 as later refined in Burdick v. Takushi, 504 U.S. 428 (1992). Under the AndersonBurdick framework, courts first look at the “character and magnitude of the asserted injury” to the plaintiff’s constitutional rights. Anderson, 460 U.S. at 789. “When a state promulgates a regulation which imposes a ‘severe’ burden on individuals’ rights, that regulation will only be upheld if it is ‘narrowly drawn to advance a state interest of compelling importance’” Lawrence v. Blackwell, 430 F.3d 368, 373 (6th Cir. 2005) (quoting Burdick, 504 U.S. at 434). The analysis requiring that a state law be narrowly tailored to accomplish a compelling state interest is known as the “strict scrutiny” test. If regulations enacted do not seriously burden a plaintiff’s rights, a state’s important regulatory interests will typically be enough to justify “reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788. Regulations falling somewhere in between—“i.e., regulations that impose a morethan-minimal but less-than-severe burden—require a ‘flexible’ analysis,
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‘weighing the burden on the plaintiffs against the [s]tate’s asserted interest and chosen means of pursuing it.’” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)). This level of review is called “intermediate scrutiny.”
i. Severity of the burden on Plaintiff In this case, Plaintiff is challenging neither the constitutionality of the State’s ballot access laws nor the Governor’s Stay-at-Home Order in isolation. Rather, Plaintiff seeks relief because the two regulations, taken together, have prevented him from collecting enough signatures before the April 21, 2020 deadline to get his name on the primary ballot. See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 586 (6th Cir. 2006) (“Our inquiry is not whether each law individually creates an impermissible burden but rather whether the combined effect of the applicable election regulations creates an unconstitutional burden on First Amendment rights.”); Graveline v. Johnson, 336 F. Supp. 3d 801, 810 (E.D. Mich. 2018) (considering “the ‘combined effect’ of the challenged regulations, rather than each statute’s requirement by itself”). Plaintiff argues that the burden put on him by the two regulations is severe,
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necessitating a strict scrutiny analysis. ECF No. 1, PageID.11. Defendants contend that the burden is moderate, necessitating a “flexible” weighing of the burdens analysis, or “intermediate scrutiny.” ECF No. 6, PageID.110.
Defendants proffer four separate reasons why the burden on Plaintiff is not severe. Upon close examination, none is convincing. First, Defendants argue that Plaintiff has not been diligent in collecting signatures because, at the time the March 23rd Stay-at-Home Order was issued, he had only collected seven hundred of the one thousand he is required to obtain. ECF No. 6, PageID.110. Defendants offer little evidence to support this assessment. The State refers to information available on its website showing a list of those candidates who have successfully met the current filing requirements.8 But the relevant question pertains to those candidates who have declared their intentions to qualify for the ballot, but have not yet met the filing requirements at the time the Stay-at-Home Order went into effect. The State could have conducted a survey to determine where those candidates were in the signature collection process as of the date of the shut-down, but no such

8

2020

Michigan

Candidate

Listing,

Mich.

Sec’y

of

State,

https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html (last accessed Apr. 19, 2020).

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information has been proffered. It is not enough to merely assert that a candidate’s successful collection of seventy percent of the requisite signatures with twenty-nine days left to go is somehow evidence of dilatory behavior. Moreover, during oral argument on this matter, Plaintiff indicated that he had campaign events planned for late March and April that had to be canceled after the Stay-at-Home Order was issued. Other candidates as well have submitted testimony that they likewise had planned to ramp up signature collection efforts in March and April, when warmer spring weather would accommodate outdoor activities and be more conducive to large social gatherings and door-todoor canvassing. See Bannister Decl. ¶ 10, ECF No. 15-2, PageID.27374; Amicus Br. of Daniel P. Finley, ECF No. 13, PageID.212; Deana Beard Mtn. for Joinder, ECF No. 17, PageID.296; see also Jones v. McGuffage, 921 F. Supp. 2d 888, 897 (N.D. Ill. 2013) (noting that burden on candidates increased when signature gathering period for special election was truncated by one-third and limited to “December and January— months during which weather in the Chicago area is particularly inclement and in which there are a dearth of large scale, outdoor, public events during which signature drives are most successful”).
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Second, Defendants contend that the Governor’s March 10, 2020 State of Emergency Declaration “should have acted as a wake-up call to Plaintiff and his staff to double-down on signature collection efforts” before the March 23, 2020 Stay-at-Home Order. ECF No. 6, PageID.111. This argument both defies good sense and flies in the face of all other guidance that the State was offering to citizens at the time. The Governor’s State of Emergency Declaration cautioned citizens that COVID-19 “is a respiratory disease that can result in serious illness or death . . . and can easily spread from person to person.” Mich. Exec. Order 2020-4 (Mar. 10, 2020). The next day, the State issued a press release urging citizens to “[r]educe in-person gatherings and activities,” “consider tele-work[ing]” and limit interactions with vulnerable populations.9 Instead of “doubling down” on door-to-door signature collection efforts between March 10th and March 23rd—increasing the risk that Plaintiff and his supporters could possibly be exposed to the COVID-19 virus by engaging in repeated close-contact with potential
9 State Recommends Community Mitigation Strategies to help slow the transmission of COVID-19 in Michigan, Michigan.gov (Mar. 11, 2020), https://www.michigan.gov/coronavirus/0,9753,7-406-98158521463--,00.html.
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petition signers or unknowingly transmit it to others—prudence at that time counseled in favor of doing just the opposite.
Third, Defendants argue that Plaintiff could have utilized a mailbased campaign to collect the remaining three hundred signatures he needed during the month-long shutdown. ECF No. 6, PageID.111. Plaintiff counters that a mail campaign is both prohibitively expensive and of unproven efficacy. ECF No. 10, PageID.159. He also says that he tried it. Plaintiff states that on April 2, 2020, he sent one thousand petitions by mail at a cost of $1.75 each. ECF No. 10, PageID.159. And by April 14, 2020, the mail campaign had garnered a total of fifteen additional signatures—which, given the cost of the mailing, meant the equivalent of paying approximately $115 per signature. Id. At that rate, Plaintiff estimates that it would have cost him an additional $34,500 to gather the remaining three hundred signatures he needed. See id. Indeed, if Plaintiff wanted to collect four hundred signatures in order to ensure a safety margin in the event any signatures were later found to be invalid, such a mailing would cost $45,000. Id; see also Deana Beard Mtn. for Joinder, ECF No. 17, PageID.296 (judicial candidate who estimates that a mail-only campaign for remaining signatures would cost
17

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her $216,450). A $34,500 expense is a significant financial burden for any congressional campaign. Further, the unforeseen nature of such an expense here surely magnifies its burden: no candidate, at the time they initially declared for office, could have anticipated that at the end of March, just when in-person signature collecting might be expected to be ramping up, there would arise the sudden need to switch to a mail-only signature campaign. While Plaintiff is not entitled to free access to the ballot, the financial burden imposed by an unforeseen but suddenly required mail-only signature campaign is far more than an incidental campaign expense or reasonable regulatory requirement. For any candidate other than those with unusually robust financial means, such a last-minute requirement could be prohibitive. Compare Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016) (“the incidental costs of gathering signatures on petitions do not come close to exclusion from the ballot, and thus do not impose a severe burden on ballot access”) with Lubin, 415 U.S. at 718 (holding that a $701.60 filing fee is an unconstitutional burden on indigent candidate with no alternative mechanism to get his name on the ballot).
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Furthermore, though the Court finds that a mail-only campaign for the remaining signatures would impose more than an incidental cost on Plaintiff and candidates like him, in the context of the COVID-19 pandemic, the efficacy of a mail-based campaign is unproven and questionable at best. Conducting an effective mail campaign in the current environment presents a significant hurdle. Such a mail-only signature gathering campaign assumes both a fully operational postal service and a public willing to walk to the mailbox, open physical envelopes, sign a petition, and deposit the envelope back into a mailbox or make a trip to the Post Office. Today, sadly, ample reasons exist to question the plausibility of each of those assumptions. For one, the United States Postal Service has itself been affected by the COVID-19 virus: As of April 7, 2020, more than 386 postal workers have tested positive for the virus nationwide and mail delays have been confirmed in Southeast Michigan.10 Media reports extensively discuss the risks of contracting COVID-19 from mail, suggesting, at least anecdotally, that

10 Justin P. Hicks, Michigan mail delivery slows as coronavirus hits postal service workers, Mlive (Apr.

7,

2020),

https://www.mlive.com/public-interest/2020/04/michigan-mail-delivery-slows-as-

coronavirus-hits-postal-service-workers.html.

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the issue may be of widespread public concern or even fear.11 Getting voters to return signatures by mail in normal times is difficult.12 In these unprecedented circumstances, the efficacy of a mail-only signature gathering campaign is simply an unknown. Forcing candidates— through little fault of their own—to rely on the mails as their only means of obtaining signatures presents a formidable obstacle of unknown dimension.
Fourth, Defendants contend that even if Plaintiff fails to gather sufficient signatures to have his name placed on the August ballot, he remains free to mount a write-in campaign, and like any write-in candidate, he would have that method of access to the ballot, which should be considered adequate. ECF No. 6, PageID.112. But this argument has already been rejected both by the Supreme Court and by a court in this district. Lubin, 415 U.S. 719 n.5 (“The realities of the electoral process . . . strongly suggest that ‘access’ via write-in votes falls
11 See, e.g., Nicola Twilley, You’ve Got Mail. Will You Get the Coronavirus?, N.Y. Times (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/health/coronavirus-mail-packages.html. 12 See Daniel Hays Lowenstein & Robert M. Stern, The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and A Proposal, 17 Hastings Const. L.Q. 175, 206 (1989) (“Recipients are not likely to sign and return the petitions . . . . Whereas the course of least resistance in a shopping mall may be to sign when asked, signing and returning a petition by mail takes significantly more effort than throwing away the solicitation letter.”).
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far short of access in terms of having the name of the candidate on the ballot.”); Anderson, 460 U.S. at 799 n.26 (“We have previously noted that [a write-in] opportunity is not an adequate substitute for having the candidate’s name appear on the printed ballot.”); Graveline, 336 F. Supp. 3d at 811 (Roberts, J.) (same).
The reality on the ground for Plaintiff and other candidates is that state action has pulled the rug out from under their ability to collect signatures. Since March 23, 2020, traditional door-to-door signature collecting has become a misdemeanor offense; malls, churches and schools and other public venues where signatures might be gathered have been shuttered, and even the ability to rely on the mail to gather signatures is uncertain—if not prohibitively expensive. Absent relief, Plaintiff’s lack of a viable, alternative means to procure the signatures he needs means that he faces virtual exclusion from the ballot. After considering Defendants’ arguments, this Court has little trouble concluding that the unprecedented—though understandably necessary— restrictions imposed on daily life by the Stay-at-Home Order, when combined with the ballot access requirements of Sections 168.133 and 168.544f, have created a severe burden on Plaintiff’s exercise of his free
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speech and free association rights under the First Amendment, as well as his due process and equal protection rights under the Fourteenth Amendment13—as expressed in his effort to place his name on the ballot for elective office. See Libertarian Party of Ky., 835 F.3d at 574 (“The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.”). Accordingly, a strict scrutiny analysis is appropriate here. See, e.g., Faulkner v. Va. Dep’t. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (applying strict scrutiny to candidate’s ballot access claim in light of state’s COVID-19 restrictions).
ii. Defendants’ interest in enforcing signature requirements in light of the Stay-at-Home Order
Because the State’s signature requirements, operating in conjunction with the Stay-at-Home Order, have imposed a severe burden on the First and Fourteenth Amendment rights of Plaintiff and other candidates in his position, such measures can be constitutionally justified only if they are “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434.
13 Although Plaintiffs nominally invoke equal protection, due process, and the First Amendment, the specific interests they raise and the nature of their arguments involve First Amendment principles more closely than the equal protection rights of minor party or independent candidates. Accordingly, this Court, like the parties, will view the case mainly as implicating First Amendment rights.
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Defendants argue that the State has two separate interests in enforcing Sections 168.133 and 168.544f. First, the State has a substantial interest in ensuring that candidates have a significant modicum of support before their names are printed on the ballot. ECF No. 6, PageID.113. Second, the State has an interest in maintaining the filing deadline of April 21, 2020 because that date “ensur[es] that the Secretary of State and her staff have sufficient time to canvass petitions, provide a challenge period, and meet the ballot certification deadline, which triggers final preparations for ballot printing by the counties.” Id. at PageID.115.
The Supreme Court has recognized that states have “an important interest in ensuring that candidates demonstrate a ‘significant modicum of support,’ before gaining access to the ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.” Libertarian Party of Ky., 835 F.3d at 577 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)). Along with enforcing specific deadlines, both regulations are part and parcel of the State’s generalized interest in the orderly administration of elections. Mays v. LaRose, 951 F.3d 775, 787 (6th Cir. 2020).
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Notably, Defendants do not explicitly contend in their brief that either of the State’s proffered interests in strict enforcement of the signature requirements rise to the level of a compelling state interest. See ECF No. 6, PageID.113-16. Rather, they see them as important government interests in the context of today’s pandemic that would pass the flexible intermediate scrutiny analysis. At oral argument, however, the State asserted that its interests were compelling, and the Supreme Court has found that ensuring that a candidate has a modicum of support before inclusion on the ballot can be a compelling state interest in other contexts. Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986) . Significantly though, with respect to Section 168.133’s April 21, 2020 deadline, the State conceded at oral argument that the signaturegathering due date could be moved back to May 8, 2020 without significant impairment of the State’s interests. Clearly any interest in maintaining April 21, 2020 as the signature due date is not, in fact, compelling.
But even assuming the State has a compelling interest in the need to ensure a modicum of support through the enforcement of the signature requirement, the regulatory means to accomplish that compelling
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interest are not narrowly tailored to the context of the COVID-19 pandemic—as it would need to be to survive a strict scrutiny analysis. This is because under typical conditions, Plaintiff’s ability to obtain one thousand signatures from registered voters would be a valid indication that he has earned the “modicum of support” the Michigan Legislature deemed sufficient to appear on the ballot. When setting the requirement at one thousand signatures, the Michigan Legislature intended that candidates be allowed until April 21, 2020—under normal, non-pandemic conditions—to gather one thousand signatures using all of the traditionally effective means to do so. The March 23, 2020 Stay-at-Home Order, for reasons already discussed, effectively halted signaturegathering by traditional means, reducing the available time prescribed by the Michigan Legislature to gather one thousand signatures by twenty-nine days. Thus, a state action narrowly tailored to accomplish the same compelling state interest would correspondingly reduce the signature requirement to account for the lost twenty-nine days. Or, to state it differently, even assuming the State generally has a compelling interest in ensuring candidates have a modicum of support before allowing inclusion on the ballot, here the State has not shown it has a
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compelling interest in enforcing the specific numerical requirements set forth in Section 168.544f in the context of the pandemic conditions and the upcoming August primary.
The State has thus failed to show that its enforcement of the signature requirements in conjunction with the Stay-at-Home Order is both justified by a compelling state interest and narrowly tailored to accomplish that interest in a manner that has the least restrictive impact on Plaintiff’s constitutional rights. It therefore fails to pass a strict scrutiny analysis. Consequently, Plaintiff has established a likelihood of prevailing on the merits of his First and Fourteenth Amendment claims.
b. Likelihood That Plaintiff Will Suffer Irreparable Harm Absent Injunctive Relief
The Court next considers whether Plaintiff will suffer irreparable harm in the absence of injunctive relief. Bays, 668 F.3d at 818-19. “To demonstrate irreparable harm, the plaintiffs must show that . . . 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).
In reviewing the record, the Court concludes that Plaintiff will suffer irreparable harm absent relief. Ballot access cases such as this
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implicate First Amendment rights, and when such fundamental rights are violated—as when a candidate is unconstitutionally deprived of access to the ballot—irreparable harm can be presumed. See Libertarian Party of Ohio, 751 F.3d at 412 (“[I]t is well-settled that loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)).
c. Probability of Harm to Others and Consideration of the Interests of the Public
The remaining factors, “harm to the opposing party and weighing the public interest . . . merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Defendants contend that the State and its citizens will be harmed in two ways if the Court issues an injunction. First, the State and the people will be deprived of the full and proper enforcement of laws enacted by the Michigan Legislature. Second, an injunction lowering the signature requirement would allegedly result in the disparate treatment of similarly situated candidates. ECF No. 6, PageID.118-19. On the first point, the State is correct that the Supreme Court has consistently recognized that states have a strong interest in seeing their laws effectuated. See New Motor
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Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”). As to the second point regarding disparate treatment, it is the case that other candidates, including some running against Plaintiff for the Republican nomination in Michigan’s Eleventh Congressional District, have already obtained enough signatures to appear on the August ballot. See Amicus Br. of Whittney Williams, ECF No. 21. If the Court were to grant Plaintiff’s request to lower the minimum number of signatures required to appear on the August primary ballot, it would be permitting candidates to appear on the ballot who had gathered fewer signatures than those like Williams who have successfully met the threshold before April 21st. In considering the State’s position, the Court agrees that the first point is well taken and that the State will likely suffer injury from not having its ballot access requirements enforced as written if an injunction issues. The question is balancing the significance of this harm against the deprivation of constitutional rights, as well as other public harms, that enforcement of those requirements would cause.
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As to the second harm identified by the State, the alleged disparate treatment of candidates, this point is not well founded. Without any injunctive relief, the combination of the Stay-at-Home Order and the signature requirements operates to cause disparate treatment of those candidates who were fortunate enough to have met their signature requirement early as compared with those who were planning—and needing to use—the last twenty-nine days that they had assumed would be available to gather signatures. One group benefits while the other loses. Similarly, if injunctive relief were to lower the number of required signatures, one could argue that the early birds who might have gained an advantage from the Stay-at-Home Order’s exclusion of their more procrastinating competitors would be “harmed” while the other candidates would be benefitted. Both the status quo and the remedy sought by Plaintiff would arguably cause a form of disparate impact on candidates. Consequently, the Court will not give weight to this second form of harm raised by the State.
The Court must weigh the State’s proffered harm of not being able to enforce its ballot access requirements against the harm to the Plaintiff and the public harms that would result from the lack of any injunction.
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The Court finds that the balance weighs in favor of an injunction. First, in the absence of an injunction, Plaintiff and other candidates in his position were left with no choice but to have violated the Stay-at-Home Order in order to collect the signatures they need. Indeed, some candidates have already admitted to having done so. See Bannister Decl. ¶ 36, ECF No. 15-2, PageID.278. The broader public interest is not served by preserving the current signature-gathering scheme at the cost of encouraging more candidates and their supporters to risk their health and criminal penalties to gather signatures.
Second, while Defendants accurately point out that voters do not have an “absolute right to vote for a candidate of [their] choice,” it is also the case that a candidate’s ability to appear on the ballot “affects the First Amendment rights of voters.” Blackwell, 462 F.3d at 588; see also Ill. State Bd. of Elections, 440 U.S. at 184 (“By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences.”). Here, if a candidate should fail to obtain enough signatures because she had relied on the somewhat standard and eminently reasonable assumption that she would be able to ramp up signature collecting in the spring, Michigan voters may lose the ability to
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vote for a candidate who, absent the pandemic, would have easily been included on the ballot. This would cause injury to the First Amendment rights of an innumerable number of Michigan voters.
Finally, were the Court to redress Plaintiff’s injury by granting his request to lower the number of signatures required to qualify for the August primary ballot, the uniform nature of the relief would have some benefits both for candidates who had already met the current threshold as well as those who had collected a lesser number of signatures. For example, because Ms. Williams has already obtained one thousand signatures, any signatures she gathered in excess of a lower minimum would provide her, and any other candidates in her position, with a larger margin of signatures, should any of the gathered signatures later be deemed invalid.
d. Remedy Since the advent of the coronavirus, and the unfurling of its deadly pall across America, the governments of the several states have searched for solutions to protect their citizens’ health, while at the same time
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preserving fundamental democratic processes and liberties.14 In New York, Governor Andrew Cuomo, confronted with the same issue that is before this Court, reduced the number of petition signatures candidates would be required to obtain to thirty percent of the statutory requirement. N.Y. Exec. Order No. 202.2 (Mar. 14, 2020). Vermont suspended its signature requirement entirely. H. 681, 2019-2020 Gen. Assemb., Adjourned Sess. (Vt. 2020). At least three states have attempted to address the difficulty candidates face obtaining in-person signatures by allowing for electronically submitted signatures. FL. Emergency R. 1SER20-2 (Apr. 2, 2020); N.J. Exec. Order No. 105 (Mar. 19, 2020); Utah Exec. Order No. 2020-8 (Mar. 26, 2020).
In responding to the public health risks that in-person voting presents, many states have taken actions designed to ensure adequate conditions for public participation. At least sixteen states and one territory—Alaska, Connecticut, Delaware, Georgia, Hawaii, Indiana, Kentucky, Louisiana, Maryland, New Jersey, New York, Ohio,
14 For an extensive review of the numerous examples of state initiatives aimed at protecting democratic processes in the wake of the COVID-19 pandemic, see Changes to election dates, procedures, and administration in response to the coronavirus (COVID-19) pandemic, 2020, Ballotpedia, https://ballotpedia.org/Changes_to_election_dates,_procedures,_and_administration_in_response_to_ the_coronavirus_(COVID-19)_pandemic,_2020 (last accessed Apr. 19, 2020).
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Pennsylvania, Rhode Island, West Virginia, Wyoming and Puerto Rico— have either rescheduled their presidential primaries or adopted voting by mail procedures with extended deadlines.15 In total, more than half of the states have already postponed at least one election.16 It may be that others will follow suit.
In Michigan, while extraordinary and well-coordinated efforts have been adopted to protect the public health, fewer efforts have focused on the challenges the virus has raised for the fair and effective functioning of elections.17 Based on the record before the Court, for the reasons explained above, Plaintiff has established that he is likely to succeed on the merits of his claim and that he will suffer irreparable harm absent an injunction. The Court also finds that on balance, the public interest would be served by the issuance of an injunction, and that the benefits to
15 Nick Corasaniti & Stephanie Saul, 16 States Have Postponed Their Primaries Because of Coronavirus. Here’s a List, N.Y. Times (Apr. 17, 2020), https://www.nytimes.com/article/2020campaign-primary-calendar-coronavirus.html. 16 See footnote 14, supra. 17 Some measures have been taken, for example, the Michigan Secretary of State announced that absentee ballots would be sent to all voters in preparation for the May 5, 2020 elections. Mich. Sec’y of State, Secretary of State to mail absent voter ballot applications to all May 5 voters (Mar. 23, 2020) https://www.michigan.gov/sos/0,4670,7-127-93094-522761-,00.html?link_id=34&can_id=3ce03c3d77033bbeb4c4bf7ba04c984c&source=email-morning-digestcomeback-bid-by-former-attorney-general-highlights-utahs-quirky-ballot-accessrules&email_referrer=email_759189&email_subject=morning-digest-comeback-bid-by-formerattorney-general-highlights-utahs-quirky-ballot-access-rules.
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the public and Plaintiff outweigh the injuries the State is likely to incur. Accordingly, Plaintiff is entitled to the extraordinary remedy of injunctive relief.
Plaintiff seeks relief from the application of the State’s signature requirements—specifically Sections 168.133 and 168.544f—because of the severe burdens the State’s Stay-at-Home Order has placed on his ability to gather signatures. See Mich. Comp. Laws §§ 168.133, 168.544f. Injunctive relief in the context of a forthcoming election is an equitable— and unusual—remedy, but it is not unprecedented. In fact, at least one state court has already entered a preliminary injunction reducing a state statutory signature requirement because of the burdens put on candidates by the COVID-19 pandemic. Faulkner v. Va. Dep’t. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (granting preliminary injunction and reducing candidate signature gathering requirements because of state’s COVID-19 restrictions). This Court agrees with the Faulkner court and finds that it is appropriate to enjoin Defendants from rigid application of those particular statutes, as well as any others that are substantively identical in causing the same kind of irreparable harm to similarly situated individuals. At the same time, the Court also finds
34

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that the State is legitimately concerned that a lowering of ballot access standards could result in “laundry list” ballots crowded with names that “discourage voter participation and confuse and frustrate those who do participate.” Lubin, 415 U.S., at 715; see also Briscoe, 429 U.S. at 1322– 23. Accordingly, the Court will balance the interests of both parties in fashioning a remedy.
The Court considers the proposed remedies suggested by the parties, together with the facts and applicable law, and finds that a threepronged remedy is necessary to address the nature of the harm while simultaneously respecting the interest of the State. First, the signature requirements must be lowered to account for the fact that the State’s action reduced the available time to gather signatures. Second, as the State has conceded that it could still meet its election planning obligations if the due date for signatures were extended until May 8, the Court will order that extension. Finally, to enhance the available means for gathering signatures, the State will be ordered to implement a method that would permit signatures to be gathered through the use of electronic mail. In doing so, the State is directed to design a system that is as “userfriendly” as possible to maximize its efficacy. For example, such
35

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procedures should allow for the use of a digital copy of a real signature whether created by scanner or by a digital photograph, assuming that the signature is appropriately witnessed, such as through digital means as described in Executive Order 2020-41.
As stated, because the Court gives weight to the State’s competing interests, the Court will not completely enjoin the enforcement of the signature requirements contained in Sections 168.133 and 168.544f. The Court will instead order the State to lower the minimum number of signatures required for candidates to be included on the August primary ballot and continue to accept signatures until May 8, 2020. This form of relief is also not without precedent. See Faulkner v. Va. Dep’t. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (reducing signature requirement sixty-five percent in light of COVID-19 restrictions); see also Graveline, 336 F. Supp. 3d at 817 (granting preliminary injunction and reducing signature requirement for attorney general candidate from 30,000 signatures to 5,000) aff’d Graveline v. Johnson, 747 F. App’x 408, 416 (6th Cir. 2018); Jones v. McGuffage, 921 F. Supp. 2d 888, 899 (N.D. Ill. 2013) (granting preliminary injunction and reducing candidate signature gathering requirements because upholding statutory signature
36

Case 2:20-cv-10831-TGB-EAS ECF No. 23 filed 04/20/20 PageID.357 Page 37 of 40
gathering requirements in context of truncated special election limited to Chicago winter would place unconstitutional burden on candidates).
The Court notes that a number of other candidates have sought to participate in this action because the outcome of this case will affect their access to the August primary ballot.18 In a separate order, the Court will permit some of the proposed plaintiffs to join this lawsuit, but because the State did not directly address the specifics of their factual claims, they are not thoroughly discussed here. As to the question of how much the signature requirement should be reduced, Plaintiff, who has already obtained seventy percent of the signatures that he is required to obtain, is asking the Court to reduce the number of signatures required to sixty percent of the minimum number required pursuant to Section 168.544f. ECF No. 10, PageID.165. Even such a reduction, however, would still present a significant hurdle for otherwise viable candidates, including those whose signature requirements are lower than Plaintiff’s. For example, candidates for certain city council positions subject to the April 21, 2020 deadline need only procure one hundred signatures. See Bannister Decl. ¶ 5, ECF No. 15-2, PageID.273. Such a candidate may
18 See footnote seven, supra.
37

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be able to easily collect one hundred signatures in as little as one week using traditional collection means like going door-to-door or canvassing at community centers. Id. ¶ 10. These candidates may have relied, reasonably and in good faith, on the ability to collect the vast majority of the signatures they needed in late March or early April, when rising temperatures would bring more people outside and facilitate signature gathering. See, e.g., Jones, 921 F. Supp. 2d at 897. While any such linedrawing inevitably involves some degree of arbitrariness, common sense suggests that a reasonably diligent candidate should be expected to have reached the half-way point in gathering signatures when there is only one month to go. Consequently, a reduction in the requirement by fifty percent will be ordered. This reduction, combined with an extension of the signature-gathering deadline until May 8, 2020, and the adoption of an acceptable email-based method for collecting signatures, will be sufficient in these unusual circumstances to ensure both sufficient access to the ballot for those who seek it, and accommodation of the State’s interest in ensuring candidates have a modicum of support before inclusion on the ballot.
38

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IV. CONCLUSION Accordingly, for all the reasons set out above, IT IS HEREBY ORDERED: - That all candidates:
o (i) who filed a statement of organization under the Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101 et seq., or established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et seq., before March 10, 2020; and
o (ii) who are required by a relevant section of the Michigan Election Law, Mich. Comp. Laws, §§ 168.1 et seq., to file a nominating petition by April 21, 2020, for the purpose of appearing on the August 4, 2020, primary election ballot; and
o (iii) who do not have the option under Michigan Election Law to appear on the August 4, 2020, primary election ballot through the payment of a filing fee in lieu of filing a nominating petition;
- Shall be qualified for inclusion on the August 4, 2020 primary election ballot if the candidate submits fifty percent of the number
39

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of valid signatures required by Mich. Comp. Laws § 168.544f with the appropriate filing official as provided by Michigan Election Law by 5:00 p.m. on May 8, 2020. No other filing deadline is extended under this Order. - Furthermore, the Director of Elections shall within 72 hours of the date of this Order adopt and promulgate, according to the specifications it determines to be appropriate and efficient, regulations providing for an additional optional procedure that allows the collection and submission of ballot petition signatures in digital form by electronic means such as email; - Finally, the Director of Elections shall take all reasonable and necessary steps to communicate the terms of this injunction to county, township, and city clerks in this State who act as filing officials for offices for which nominating petitions are due as described in this Order. IT IS SO ORDERED. DATED this 20th day of April, 2020.
BY THE COURT: /s/Terrence G. Berg TERRENCE G. BERG United States District Judge
40

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.365 Page 1 of 40

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG

Plaintiff,

MAG. ELIZABETH A. STAFFORD

and

DEFENDANTS’ EMERGENCY

MATT SAVICH and DEANA BEARD,

MOTION UNDER RULE 60(B)

FOR LIMITED RELIEF FROM

Intervenors-Plaintiffs,

THE COURT’S ORDER

v

GRANTING A PRELIMINARY

INJUNCTION, OR

GRETCHEN WHITMER, Governor of

ALTERNATIVELY FOR A STAY

Michigan, JOCELYN BENSON, Secretary of

PENDING EMERGENCY

state of Michigan, and JONATHAN

APPEAL

BRATER, Director of the Michigan Bureau

of Elections, in their official capacities,

RESPONSE REQUESTED AS

SOON AS POSSIBLE BUT NO

Defendants.

LATER THAN FRIDAY APRIL

24, 2020 GIVEN THE NEED TO

EXPEDITE DEFENDANTS’

APPEAL

______________________________________/

Gregory J. Rohl (P39185)

Attorney for Plaintiff

41850 W. Eleven Mile Road, Suite 110

Novi, Michigan 48375

248.380.9404

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

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.366 Page 2 of 40
Michael S. Cafferty (P36613) Attorney for Intervenor-Plaintiff Savich 333 West Fort Street, Suite 1400 Detroit, Michigan 48226 313.964.3070
Deana Beard, In Pro Per Intervenor-Plaintiff 2885 South Trenton Drive Trenton, Michigan 48183 734.502.7411
/
DEFENDANTS’ EMERGENCY MOTION UNDER RULE 60(B) FOR LIMITED RELIEF FROM THE COURT’S ORDER GRANTING A PRELIMINARY INJUNCTION, OR ALTERNATIVELY FOR A STAY
PENDING EMERGENCY APPEAL
Defendants Michigan Governor Gretchen Whitmer, Secretary of State
Jocelyn Benson, and Director of Elections Jonathan Brater (the State Defendants),
in their official capacities, by and through their attorneys, move for limited relief
from the Court’s April 20, 2020 order granting a preliminary injunction under Fed.
R. Civ. P. 60(b)(2), or alternatively for a limited stay pending appeal under Fed. R.
Civ. P. 62(c) and Fed. R. App. P. 8(a)(1)(C) of the order granting a preliminary
injunction. In support of their motion, the State Defendants state as follows:
1. Plaintiff Eric Esshaki asked this Court to enjoin the signature requirement
for nominating petitions to qualify as a candidate for the U.S House of
Representatives. He argued the Covid-19 pandemic and the Governor’s Stay-at-
Home Orders made it impossible for him to meet the signature requirement by the

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.367 Page 3 of 40
April 21, 2020 filing deadline, and as a remedy the Court should reduce his signature requirement by 40%. 2. On April 20, 2020, the Court granted Plaintiff’s motion for a preliminary injunction, principally ordering that that the filing deadline be extended to May 8, 2020, that the Director of Elections implement a process for collecting and filing signatures by email, and that the signature thresholds by reduced by 50%. 3. The next day, April 21, 2020, Plaintiff Esshaki appeared at the Michigan Bureau of Elections and timely filed nominating petitions containing signatures in excess of his minimum filing requirement. The filing also revealed that despite his representations and arguments to the Court to the contrary, Plaintiff and his volunteers had been collecting signatures during the time frame covered by the Stay-at-Home orders, and that Plaintiff had also been successful in collecting a significant number of signatures by mail. In other words, Plaintiff met the very requirements from which he sought relief from this Court. 4. The facts of Plaintiff’s April 21 filing constitute new evidence that neither the State Defendants nor the Court possessed in responding to and deciding Plaintiff’s motion for an injunction. Because this evidence is material and likely would have produced a different result had it been presented to the Court, Defendants seek limited relief from the Court’s order under Fed. R. Civ. P

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.368 Page 4 of 40
60(b)(2). Specifically, the State Defendants seek relief only from the Court’s 50% reduction of the signature thresholds. 5. Alternatively, if the Court denies that requested relief, the State Defendants request this Court stay that portion of its order imposing the 50% signature reduction pending an emergency appeal by Defendants to the Sixth Circuit. The State Defendants are likely to succeed on their narrow appeal of the signature reduction, and the other stay factors weigh in favor of granting Defendants a stay. 6. Time is of the essence because Defendants’ requests for relief, if successful, impact the number of signatures candidates will be required to file by May 8, 2020 in order to appear on the August 4, 2020 primary election ballot. Defendants thus ask this Court to grant their motion on an expedited basis. 7. Pursuant to L.R. 7.1, on April 22, 2020, defense counsel sought concurrence in the relief requested in this motion but defense counsel either did not hear back from opposing counsel by the time the motion was filed, or concurrence was not granted, necessitating the filing of this motion.
WHEREFORE, for the reasons more fully set forth in the attached brief, Defendants Governor Gretchen Whitmer, Secretary of State Jocelyn Benson, and Director of Elections Jonathan Brater respectfully request that this Honorable Court grant their motion for limited relief from the Court’s order granting Plaintiff Esshaki a preliminary injunction under Fed. R. Civ. P. 60(b). Alternatively, if the

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Court denies the request for relief under Rule 60(b), Defendants request that the

Court stay that portion of the injunction reducing the signature thresholds by 50%

pending Defendants appeal to the Sixth Circuit.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: April 22, 2020

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

CERTIFICATE OF SERVICE
I hereby certify that on April 22, 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

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.370 Page 6 of 40

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG

Plaintiff,

MAG. ELIZABETH A. STAFFORD

and

DEFENDANTS’ BRIEF IN

MATT SAVICH and DEANA BEARD,

SUPPORT OF EMERGENCY

MOTION UNDER RULE 60(B)

Intervenors-Plaintiffs,

FOR LIMITED RELIEF FROM

v

THE COURT’S ORDER

GRANTING A PRELIMINARY

GRETCHEN WHITMER, Governor of

INJUNCTION, OR

Michigan, JOCELYN BENSON, Secretary of ALTERNATIVELY FOR A STAY

state of Michigan, and JONATHAN

PENDING EMERGENCY

BRATER, Director of the Michigan Bureau

APPEAL

of Elections, in their official capacities,

RESPONSE REQUESTED AS

Defendants.

SOON AS POSSIBLE BUT NO

LATER THAN FRIDAY APRIL

24, 2020 GIVEN THE NEED TO

EXPEDITE DEFENDANTS’

APPEAL

______________________________________/

Gregory J. Rohl (P39185)

Attorney for Plaintiff

41850 W. Eleven Mile Road, Suite 110

Novi, Michigan 48375

248.380.9404

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.371 Page 7 of 40
517.335.7659 Michael S. Cafferty (P36613) Attorney for Intervenor-Plaintiff Savich 333 West Fort Street, Suite 1400 Detroit, Michigan 48226 313.964.3070
Deana Beard, In Pro Per Intervenor-Plaintiff 2885 South Trenton Drive Trenton, Michigan 48183 734.502.7411
/
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION UNDER RULE 60(b) FOR LIMITED RELIEF FROM THE COURT’S
ORDER GRANTING A PRELIMINARY INJUNCTION, OR ALTERNATIVELY FOR A STAY PENDING EMERGENCY APPEAL

Dated: April 22, 2020

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

Case 2:20-cv-10831-TGB-EAS ECF No. 26 filed 04/22/20 PageID.372 Page 8 of 40
TABLE OF CONTENTS Page
Table of Contents ....................................................................................................... i Index of Authorities .................................................................................................. ii Concise Statement of Issues Presented .................................................................... iv Controlling or Most Appropriate Authority...............................................................v Introduction ................................................................................................................1 Statement of Facts......................................................................................................2
Statutory Requirements .........................................................................6 Procedural History.................................................................................8 Argument..................................................................................................................11 The order granting preliminary injunctive relief should be amended to exclude the requirement that the signature thresholds be reduced by fifty percent for all candidates who otherwise meet the terms of the order. ..............................................................................................................11 Alternatively, the portion of the Court’s preliminary injunction ordering that signature requirements be reduced by fifty percent should be stayed pending the State Defendants’ emergency appeal. ............20 The State Defendants are likely to prevail on the merits of their narrow appeal regarding the signature reduction. ...............................21 The State Defendants will be irreparably harmed absent a stay and the public interest weighs in favor of a stay.................................26 The threat of harm to others is outweighed by the other factors. .......27 Conclusion and Relief Requested ............................................................................27 Certificate of Service ...............................................................................................28
i

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INDEX OF AUTHORITIES Page
Cases American Party of Texas v. White, 415 U.S. 767 (1974).........................................23 Bullock v. Carter, 405 U.S. 134 (1972) ...................................................................23 Burdick v. Takushi, 504 U.S. 428 (1992).................................................................20 Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir.
2006) .....................................................................................................................21 Frank v. Walker, 574 U.S. 929 (2014).....................................................................24 GenCorp. Inc. v. Am. Int'l Underwriters, 178 F.3d 804 (6th Cir. 1999) .................12 Good v. Ohio Edison Co., 149 F.3d 413 (6th Cir. 1998).........................................12 Graveline, et al v. Benson, et al., 336 F. Supp. 3d 801 (E.D. Mich. 2018).............13 HDC, LLC v. City of Ann Arbor, 675 F.3d 608 (6th Cir. 2012) ....................... 12, 17 Jenness v. Forton, 403 U.S. 431 (1971) ..................................................................23 Jinks v. AlliedSignal, Inc., 250 F.3d 381 (6th Cir. 2001) ........................................17 Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009)........................................................21 Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016)...........................24 Maryland v. King, 133 S. Ct. 1 (2012) ....................................................................26 Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998) ..................22 Michigan Coal of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d
150 (6th Cir. 1991) ...............................................................................................26 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).........................................23 Nader v. Blackwell, 230 F.3d 833 (6th Cir. 2000)...................................................26 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..........26
ii

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Olle v. Henry & Wright Corp., 910 F.2d 357 (6th Cir. 1990) .................................17 Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566
(6th Cir. 2002) ......................................................................................................21 Republican Nat’l Comm. v. Democratic Nat’l Comm., 2020 WL 1672707 at
*1 (U.S., April 6, 2020) ................................................................................. 24, 25 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ..............................23 U.S. Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir. 2008) ..........................22 Statutes Mich. Comp. Laws § 10.33........................................................................................5 Mich. Comp. Laws § 168.133.......................................................................... passim Mich. Comp. Laws § 168.413....................................................................................6 Mich. Comp. Laws § 168.552....................................................................................8 Mich. Comp. Laws § 168.552(10).............................................................................8 Mich. Comp. Laws § 168.552(11).............................................................................8 Mich. Comp. Laws §168.544f ......................................................................... passim Rules Fed. R. Civ. P. 60(b)(2).................................................................................... passim Constitutional Provisions Mich. Const. 1963, art 2, § 4(2) ...............................................................................20
iii

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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether the Court’s order granting preliminary injunctive relief
should be amended to exclude the requirement that the signature thresholds be reduced by fifty percent. 2. Whether the portion of the Court’s preliminary injunction ordering that signature requirements be reduced by fifty percent should be stayed pending the State Defendants’ emergency appeal.
iv

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.544f Mich. Comp. Laws § 168.133 Burdick v. Takushi, 504 U.S. 428 (1992) Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016) Maryland v. King, 133 S. Ct. 1 (2012) Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998) Michigan Coal of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150 (6th Cir. 1991) HDC, LLC v. City of Ann Arbor, 675 F.3d 608 (6th Cir. 2012) Republican Nat’l Comm. v. Democratic Nat’l Comm., 2020 WL 1672707 at *1 (U.S., April 6, 2020) U.S. Student Ass’n Found. v. Land, 546 F.3d 373 (6th Cir. 2008)
v

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INTRODUCTION Plaintiff Eric Esshaki asked this Court to enjoin the signature requirement for nominating petitions to qualify as a candidate for the U.S House of Representatives. He argued the Covid-19 pandemic and the Governor’s Stay-atHome Orders made it impossible for him to meet the signature requirement by the April 21, 2020 filing deadline, and as a remedy the Court should reduce his signature requirement by 40%. On April 20, 2020, the Court granted Plaintiff’s motion for a preliminary injunction, ordering, among other things, that the filing deadline be extended to May 8, 2020, that the Director of Elections implement a process for collecting and filing signatures by email, and that the signature thresholds be reduced by 50%. (R. 23, Injunction Order, Page ID ## 359-360.) The next day, April 21, 2020, Plaintiff Esshaki appeared at the Michigan Bureau of Elections and timely filed nominating petitions containing signatures in excess of the statutorily required minimum filing requirement. The filing revealed that despite his representations and arguments to the Court to the contrary, Plaintiff and his volunteers had been collecting signatures during the time frame covered by the Stay-at-Home orders, and that Plaintiff had also been successful in collecting a significant number of signatures by mail. In other words, Plaintiff met—indeed exceeded—the very requirements from which he sought relief from this Court.
1

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The facts of Plaintiff’s April 21 filing constitute new evidence that neither the State Defendants nor the Court possessed in responding to and deciding Plaintiff’s motion for an injunction. Because this evidence is material and likely would have produced a different result had it been presented to the Court, Defendants seek limited relief from the Court’s order under Fed. R. Civ. P. 60(b)(2). Specifically, the State Defendants seek only relief from the Court’s 50% reduction of the signature thresholds.
Alternatively, if the Court denies that request for relief, the State Defendants request this Court stay that portion of its order imposing the 50% signature reduction pending an emergency appeal by Defendants to the Sixth Circuit. The State Defendants are likely to succeed on their narrow appeal of the signature reduction, and the other stay factors weigh in favor of granting Defendants a stay.
Time is of the essence because Defendants’ requests for relief, if successful, impact the number of signatures other candidates will be required to file by May 8, 2020 in order to appear on the August 4, 2020 primary election ballot. Defendants thus ask this Court to grant their motion on an expedited basis.
STATEMENT OF FACTS Plaintiff Eric Esshaki is a registered nurse and licensed attorney running as a Republican candidate for Michigan’s Eleventh Congressional District of the United States House of Representatives. (Comp., R. 1, Page ID ## 2, 5, ¶¶ 2, 17). Esshaki
2

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filed his statement of candidacy with the Federal Election Commission on October 31, 2019. (Id. ¶ 18.)1 He also “hired campaign staff and has been diligently campaigning since October 2019.” (Id., ¶ 19.) Under Michigan’s Election Law, as enacted, to gain access to the August 4, 2020 primary ballot, Esshaki was required to file a nominating petition containing at least 1,000 valid signatures from registered voters with Defendant Secretary of State Jocelyn Benson by April 21, 2020. See Mich. Comp. Laws §§ 168.133, 168.544f.
Esshaki alleged that “his campaign team implemented a plan to collect the required number of signatures early on in his campaign.” (Id., Page ID # 6, ¶ 21.) He further alleged that, “his campaign team, and several volunteers and supporters have been working diligently, and ha[d] already collected nearly seven hundred (700) valid signatures,” presumably by the time he filed his complaint on March 31, 2020. (Id., Page ID # 6, ¶ 22.)
On March 10, 2020, Defendant Governor Gretchen Whitmer declared a state of emergency and invoked emergency powers in Executive Order No. 2020-4, in response to the spreading pandemic related to Covid-19 and to two confirmed cases in Michigan.2 While this order noted the serious nature of the virus, it did
1 Plaintiff’s statement and filings are available on the Federal Election Commission’s website at https://www.fec.gov/data/candidate/H0MI11129/. 2 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html.
3

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not restrict the movement or gathering of people in Michigan. On March 13, 2020, Governor Whitmer issued Executive Order 2020-5 prohibiting assemblages of 250 or more people in a single shared space with limited exceptions, and ordering the closure of all K-12 school buildings.3
Esshaki alleged that after President Donald Trump asked people nationwide on March 15, 2020 to begin social distancing in response to the spreading pandemic related to Covid-19, “Esshaki and his campaign postponed some of its efforts to collect signatures.” (Id., Page ID ## 6-7, ¶¶ 23-24.) (Emphasis added).
The next day, on March 16, 2020, Governor Whitmer ordered various places of public accommodation, like restaurants, bars, and exercise facilities, to close their premises to the public.4 And on March 17, 2020, the Governor issued an order rescinding 2020-5, changing the cap on assemblages to 50 persons in a single shared indoor space, and expanding the scope of exceptions from that cap.5
Subsequently, on March 23, 2020, again in response to the spreading Covid19 pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21 (the “Stay-at-Home Order”), which essentially ordered all persons not performing
3 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. 4 EO No. 2020-9, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. Replaced by EO 2020-20. 5 EO No. 2020-11, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html.
4

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essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, engage in outdoor activity consistent with social distancing, and other limited exceptions. 6 The order also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household.7 That order was to continue through April 13, 2020, however, on April 9, 2020, the Governor issued Executive Order 2020-42, extending the Stay-at-Home Order through April 30, 2020.8 A violation of an Executive Order, like the Stay-at Home-Order, is punishable as a misdemeanor. Mich. Comp. Laws § 10.33.
As noted by Esshaki, the Stay-at-Home Order does not create an express exception from its restrictions for candidates and campaign staff. (R. 1, Compl., Page ID # 8, ¶ 29). He asserted that he attempted to obtain signatures by mail, and that while he sent out 1,000 pieces, he only obtained 15 signatures in return. (R. 10, Esshaki Reply, Page ID # 159.) He alleged that the Governor’s Stay-at-Home Order makes it impossible for him “to obtain the required number of elector signatures by April 21, 2020.” (Id., ¶ 36).
6 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. 7 (Id.) 8 EO No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf.
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Statutory Requirements Mich. Comp. Laws § 168.133 provides the filing deadline for nominating petitions for the office of U.S House of Representatives. Under the statute, this year’s deadline for filing a nominating petition to gain access to the August 4, 2020 primary election ballot was April 21, 2020. Similar statutes impose the same filing deadline for candidates seeking other offices. See, e.g., Mich. Comp. Laws § 168.413 (circuit court candidates), § 168.467b (district court candidates). (See also R. 6, Defs Resp to TRO, Ex 1, Page ID # 123). Mich. Comp. Laws § 168.544f, sets the signature requirement for Esshaki as a congressional candidate for the House based on the population of the congressional district. That statute requires him to submit a nominating petition containing at least 1,000 valid signatures. (Id.) Section 544f also provides the signature requirements for all other offices for which nominating petitions must be filed. (See R. 6, Defs Resp to TRO, Ex 1, Page ID # 123.) The filing deadline for nominating petitions is just one of many deadlines that regulate the election processes leading up to an election, and relevant here, leading up to the August 4, 2020 primary election.9 The deadline for nominating petitions helps ensure that the filing official responsible for canvassing such
9 See 2020 Michigan Election Dates, pp 6-9, available at https://www.michigan.gov/documents/sos/2020_Elec-Dates-Booklet_ED-12_1009-19_668275_7.pdf.
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petitions has time to perform the canvass, and that the slate of candidates can be

properly certified, and that ballots can be printed, proofed, and ready for delivery

by the local clerks to absent ballot voters, including military and overseas voters.10

The relevant deadlines for the August primary include:

Date and Time11 By 4:00 pm on April 21 By 4:00 pm on April 24 April 28
June 2
June 5
June 20 June 20
June 25 By 4:00 pm on July 24 August 4

Action Candidates for partisan office must file nominating petitions and Affidavit of Identity for the August Primary Deadline for candidates to withdraw from the August Primary Deadline to submit challenges against nominating petitions filed by partisan candidates to filing official Board of State Canvassers completes canvass of nominating petitions filed by candidates for the August Primary; Secretary of State certifies candidates eligible to appear on August primary ballot to county election commissions. Approximate date county clerks will begin printing ballots for the August Primary Delivery of military and overseas AV ballots must begin Deadline for county clerks to deliver AV ballots for the August Primary to local clerks Deadline for AV ballots to be made available to voters Write-in candidates file Declaration of Intent form State Primary

Statute MCL 168.133 MCL 168.134 MCL 168.552 MCL 168.552
MCL 168.759a MCL 168.714 Mich. Const., Art. 2 § 4 MCL 168.737a

10 (Id.) 11 All times are 5:00 pm unless otherwise specifically noted.
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With respect to congressional candidates like Esshaki, after the filing deadline expires, interested parties have the opportunity to submit challenges against the nominating petitions to the Bureau of Elections within seven days. Mich. Comp. Laws § 168.552. The petitions and any challenges must be canvassed by staff to determine the number of facially valid signatures by reviewing each petition sheet for facial defects such as heading errors, circulator errors, or incomplete signor information like omitted date or address. The Bureau then completes a staff report containing recommendations to the Board of State Canvassers, which must be made available at least two full business days prior to the Board’s meeting where it will determine the sufficiency of the nominating petitions. Mich. Comp. Laws § 168.552(10). The Board of State Canvassers must meet and complete the canvass of all nominating petitions by June 2, 2020. Mich. Comp. Laws § 168.552(11). That same day, the Secretary of State must certify the names of candidates eligible to appear on the August primary ballot to the local county clerks who will commence printing. (Id.)
Procedural History Plaintiff Esshaki filed his complaint for declaratory and injunctive relief, along with a motion for a temporary restraining order on March 31, 2020. (R. 1, Compl. Page ID ## 1-39; R. 2, Mtn & Brf for TRO, Page ID ## 40-85). On April 1, 2020, the Court and the parties, represented by counsel, conducted a telephone
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conference to discuss Plaintiff’s motion. Defendants agreed to submit a response to the motion by Friday, April 10, 2020, and did so. (See R. 6, Defs Resp to TRO, Page ID # 95.)
Motions to intervene were filed by two judicial candidates on April 14 and 15, 2020, respectively. (R. 11, Savich Mtn, Page ID # 169; R. 17, Beard Mtn., Page ID # 287). Amicus curiae briefs in support of Plaintiff Esshaki were filed by the Michigan branch of the American Civil Liberties Union, (R. 14, Mtn, Page ID # 238; R. 15, ACLU Brf, Page ID # 242), and by Daniel Finley, another judicial candidate, (R. 7, Mtn, Page ID # 126; R. 13, Finley Brf, Page ID # 194) on April 14, 2020. An amicus brief in support of State Defendants was filed by Whittney Williams, a competing candidate for the Eleventh Congressional District, on April 15, 2020. (R. 20, Mtn, Page ID # 321; R. 21, Williams Brf., Page ID # 314).
The Court held a videoconference hearing on Plaintiff’s motion on Wednesday, April 15, 2020. And at 12.27 a.m. on Monday, April 20, 2020, the Court entered an order granting a preliminary injunction. (R. 23, Injunction Order, Page ID # 321.) The Court also granted the motions to intervene by Savich and Beard, and the motions to file amicus briefs. (R. 22, Order, Page ID # 318). In its injunction, the Court ordered “that all candidates”:
(i) who filed a statement of organization under the Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101 et seq., or established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws §§ 169.201 et seq., before March 10, 2020; and
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(ii) who are required by a relevant section of the Michigan Election Law, Mich. Comp. Laws §§ 168.1 et seq., to file a nominating petition by April 21, 2020, for the purpose of appearing on the August 4, 2020, primary election ballot; and (iii) who do not have the option under Michigan Election Law to appear on the August 4, 2020, primary election ballot through the payment of a filing fee in lieu of filing a nominating petition; Shall be qualified for inclusion on the August 4, 2020 primary election ballot if the candidate submits fifty percent of the number of valid signatures required by Mich. Comp. Laws § 168.544f with the appropriate filing official as provided by Michigan Election Law by 5:00 p.m. on May 8, 2020. No other filing deadline is extended under this Order. [R. 23, Injunction Order, Page ID # 359-360 (emphasis added).] The Court further ordered Defendant Director of Elections to implement,
within 72 hours, a process “providing for an additional optional procedure that
allows the collection and submission of ballot petition signatures in digital form by electronic means such as email.” (Id., Page ID # 360.)12 And finally, the Director
of Elections was ordered to take all reasonable steps to inform local election
officials of the terms of the Court’s injunction. (Id.)
As entered, the Court’s order applies to the offices of U.S. Senate, U.S.
Congress, Wayne County Community College (WCC) Trustee, all judicial offices
(but only for candidates who are not the current incumbent), and any city office
12 That process has been implemented. See the Bureau of Elections’ website at https://www.michigan.gov/sos/0,4670,7-127-1633---,00.html.
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where the city charter does not allow the option to file with a fee.13 All of the covered offices file nominating petitions with the Secretary of State,14 except for the WCC Trustee, which are filed with the Wayne County Clerk, and the city offices, which are filed with the relevant city clerk. The State Defendants also understand the order as applying to candidates within the covered offices who filed nominating petitions prior to the Court’s issuance of the injunction. In other words, candidates who filed nominating petitions early and met the requisite signature filing threshold would have until May 8, 2020 to supplement their filings, and would be subject to the 50% signature reduction.
ARGUMENT The order granting preliminary injunctive relief should be amended to exclude the requirement that the signature thresholds be reduced by fifty percent for all candidates who otherwise meet the terms of the order. The State Defendants move for relief from the Court’s April 20, 2020 order granting a preliminary injunction. Fed. R. Civ. P. 60(b)(2) provides that “[o]n motion and just terms, the court may relieve a party . . . from a[n] . . . order” based
13 See the Bureau of Elections’ website at https://www.michigan.gov// documents/sos/Webpage_Update_Final_688056_7.pdf. 14 See 2020 Michigan Candidate Listing for August Primary, available at https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html, for up to date filings.
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on “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”
To prevail on a motion under Rule 60(b)(2) based on newly discovered evidence, a party “must demonstrate (1) that it exercised due diligence in obtaining the information and (2) [that] the evidence is material and controlling and clearly would have produced a different result if presented before the original judgment.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998)). The newly discovered evidence “must have been previously unavailable.” Id. (citing GenCorp. Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).
In his motion for temporary restraining order filed March 31, 2020, Plaintiff argued that enforcement of the filing deadline and the signature requirement against him was unconstitutional because “Defendants have stripped candidates like Esshaki of the ability to meet these requirements because the Stay-home Order prohibits Esshaki from leaving his home for non-essential purposes like signature gathering.” (R. 2, TRO Brf, Page ID # 53). (Id.) He argued that the Stay-at-Home Order “further requires Esshaki to maintain a distance of six feet from voters in his district, which effectively eliminates any possibility of electors to provide their signatures without themselves having violated the Order.” (Id.) And that taken together, the statutes and “the Stay-home Order impose burdens so severe that they
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‘function as an absolute bar’ to Esshaki getting his name on the August 2020 primary ballot.” (Id., quoting Graveline, et al v. Benson, et al., 336 F. Supp. 3d 801, 809 (E.D. Mich. 2018) (emphasis added).
In his declaration in support of his motion, Plaintiff asserted that the Stay-atHome Order impeded or prohibited him from continuing to gather signatures in person. (R. 2, TRO Brf, Ex A, Esshaki Dec, Page ID ## 61, 66.) He complained that without relief, he would have lost a substantial amount of time and money or would have been required to spend “a substantial amount of time and money” to attempt to collect signatures by mail “when there is no evidence that such a strategy would yield even one additional signature.” (Id.)
Plaintiff essentially repeated these arguments in his reply brief filed April 14, 2020. (R. 10, Plfs Reply, Page ID ## 156, 157-158, 162, 164.) Plaintiff also expounded upon his efforts to secure signatures by mail, asserting that he mailed approximately 1,000 petitions on or around April 2, at a cost of $1.75 per piece, and that as of April 14, he had received “approximately 15 signatures by mail,” and that this equated to a price of $115.00 per signature. (Id., Page ID # 159.) “Thus, Esshaki would be required to spend around $45,000 to obtain the additional 400 signatures needed.” (Id.) For relief, Plaintiff requested a 40% reduction in signatures, which would “reduce the burden on Esshaki and other similarly situated candidates.” (Id., Page ID # 166).
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The Court was persuaded by Plaintiff’s arguments to grant injunctive relief. First, the Court found that the State’s argument that Plaintiff was not sufficiently diligent in collecting signatures to be unsupported in the record, while Plaintiff attested that they had events planned for late March and April that had to be cancelled after the Governor’s Order. (R. 23, Injunction Order, Page ID ## 334335.) Second, the Court rejected the State’s argument that Plaintiff should have increased signature collection efforts after the Governor’s State of Emergency Declaration, as that would have gone against the advice and guidance offered by the government at the time. (Id., Page ID # 336.) Third, the Court rejected the argument that collecting signatures by mail was a sufficient alternative to in-person signature gathering. The Court found that utilizing the mail-based signature gathering method was less effective and more expensive. (Id., Page ID # 337.) This finding was based upon Plaintiff’s alleged efforts, in which he mailed 1,000 petitions at a cost of $1.75 each and received only 14 additional signatures, at an effective cost of $115 per signature. (Id.) The Court noted that while a candidate is not entitled to free access to the ballot, the sudden and unforeseen necessity of a mail-only signature gathering effort was “far more” than an incidental expense and was potentially prohibitive. (Id., Page ID # 338). The Court also observed that the efficacy of a mail-only effort was—in the context of this pandemic—unproven and questionable. (Id., Page ID ## 339-340). Lastly, the
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Court rejected the State’s argument that Plaintiff’s ability to alternatively run as a write-in candidate reduced the severity of the burden.
Having concluded that the burden on Plaintiff was severe, the Court then considered whether the signature requirements were narrowly drawn to advance compelling state interests. (Id., Page ID ## 342-343). As to the number of signatures required, the Court held that even if the state interests in ensuring a modicum of support for a candidate were compelling, the regulatory means were not narrowly tailored in the context of the COVID-19 pandemic. (Id., Page ID ## 344-345). The Court observed that under normal circumstances, gathering one thousand signatures, as Esshaki was otherwise required to do, would be an indication of the candidate’s popular support. (Id., Page ID # 345.) But the Court found that the Governor’s Stay-at-Home Order effectively halted the ability to gather signatures after March 23, and there was no other state action to reduce the number of signatures required in proportion to the reduction in time to gather them. (Id., Page ID # 345.) Stated differently, even if the State normally had a compelling interest in enforcing the signature requirement, the State had not shown that it has a compelling interest in enforcing the same number of signatures in the context of the pandemic. (Id., Page ID # 346.)
As a remedy, the Court determined that it would reduce the number of signatures, extend the deadline for submission to May 8, and expand the available
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means of gathering signatures to include electronic means. (Id., Page ID # 355). And after concluding that a reasonably diligent candidate should have expected to reach the halfway point for signature gathering when just a month remained, the Court held that the number of signatures required should similarly be reduced by 50%. (Id., Page ID # 358). The Court entered its order granting injunctive relief on April 20, 2020.
The very next day, on April 21, 2020, Plaintiff Esshaki personally appeared at the Michigan Bureau of Elections at approximately 10:30 a.m. to file his nominating petitions before the 4:00 p.m. statutory deadline. (Ex A, Malerman Dec, ¶ 4). A review of his filing revealed that 793 of Plaintiff’s signatures were collected before the Governor’s March 23 Stay-at-Home Order. (Id., ¶ 5(h).) Another 242 signatures were collected between April 9 and April 20, 2020, by Plaintiff Esshaki and other volunteer circulators, which was after issuance of the Stay-at-Home Orders, and presumably were collected through some appropriate form of in-person interaction between the circulator and the signer. (Id., ¶¶ 3, 5(a)(e).) And another 228 signatures appear to have been collected by mail between April 7 and April 19, 2020, which again was after issuance of the original or the extended Stay-at-Home Orders. (Id., ¶ 5(f)-(g).) Thus, despite Esshaki’s representations in his pleadings and at the hearing that the Stay-at-Home Orders were prohibiting him and/or his volunteers from collecting signatures, and that a
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mail campaign was not feasible because of costs, response rate, and trouble with the post office, he secured a substantial number of additional signatures after the issuance of those orders and many by mail. As a result, Plaintiff timely filed approximately 1,263 signatures, more than 25% (or 263 signatures) over the minimum number of signatures required by § 544f, and far in excess of the 50% reduction (or 500 signatures) ordered by the Court. (Id., ¶ 6(a)-(b).) Under the terms of the Court’s order, Plaintiff remains free to supplement this filing with additional signatures until the extended filing deadline expires at 5:00 p.m. on May 8, 2020. (Id., ¶ 7.)
This evidence of Plaintiff’s April 21 filing is new evidence that State Defendants could not have produced in opposition to Plaintiff’s motion for an injunction because the evidence was not yet available to them. HDC, LLC, 675 F.3d at 615.15 But the State Defendants have exercised diligence in bringing it to the Court’s attention upon discovering the information on April 21. (Id.) Further, Defendants believe that this evidence “is material and controlling and clearly would have produced a different result” had it been “presented” to the Court before
15 Rule 60(b)(6) also permits a court to grant relief for “any other reason that justifies” it; however, the rule applies only in “exceptional and extraordinary circumstances not addressed by the first five subsections of Rule 60(b).” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001). Should the Court not agree the filing presents new evidence, Rule 60(b)(6) also supports relief here because this is an “unusual and extreme situation[ ] where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990).
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the Court entered the April 20, 2020 order granting Plaintiff a preliminary injunction. (Id.) Surely some or all of this information was available to Plaintiff and could, or arguably should, have been provided to the Court before April 20, 2020.
Plaintiff Esshaki is the principal Plaintiff in this case, the only party who moved for an injunction, and the Court focused on his claims in its order.16 And as demonstrated above in the discussion of the Court’s order, the Court very clearly relied upon, and was persuaded by, Plaintiff Esshaki’s representations and argument that the Covid-19 pandemic and the Governor’s orders would ultimately prohibit him from collecting sufficient signatures by the April 21 deadline. The Court was also plainly persuaded by Plaintiff’s representations and argument that collecting signatures by mail was not a viable or sufficient alternative to in-person signature gathering. Just reading the Court’s order, it could hardly be disputed that Esshaki’s representations as to his inability to comply with the law due to the Governor’s orders formed the basis for the Court’s grant of relief.
16 The Court granted motions to intervene filed by Matt Savich and Deana Beard after the April 15 hearing, (R. 22, Order granting intervention), and stated that because Defendants had not been able to respond to the intervenors, the Court’s “Order focuses primarily on Mr. Esshaki’s arguments, and refers to him as ‘Plaintiff.’” (R. 23, Injunction Order, Page ID # 323, n 5.)
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And in that case, it is difficult to believe that the Court would have reached the same conclusions or granted the same relief had it possessed the new evidence showing that Plaintiff was able to do everything he professed he could not given the pandemic and the Governor’s orders. Defendants believe that this new evidence would support relieving them from the terms of the Court’s injunction in its entirety. But that is not what the State Defendants request in this brief. Defendants previously conceded to the Court that extending the filing deadline to May 8 could be done without causing significant harm to the primary election schedule. Defendants also proposed to formulate a process to permit candidates with nominating petitions due by April 21 to collect and file signatures by email. Defendants thus do not seek relief from those terms of the Court’s injunction.
But Defendants do request relief from the requirement that signature thresholds be reduced by 50% for all candidates under the terms of the injunction. The State Defendants argued against a reduction of signatures in their brief in opposition to the motion for a temporary restraining order, and maintained that position throughout the injunction hearing, and do so here again. The Court could only have ordered the signature reduction on the basis that Plaintiff Esshaki had demonstrated he was entitled to such relief based on his arguments that he could not meet the requirement. But as noted above, the new evidence shows that Plaintiff met the signature requirement by filing over 1,200 signatures. He did not
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and does not require the relief he sought. And under those circumstances, it was and is a clear intrusion into the State’s prerogative to prescribe time, place, and manner restrictions for holding elections. U.S. Const. art. I, § 4, cl. 1; Mich. Const. 1963, art. 2, § 4(2); Burdick v. Takushi, 504 U.S. 428, 433 (1992). To the extent Plaintiff is concerned that he may need additional signatures as a cushion, as noted above, he may supplement his filing. Moreover, pursuant to the Court’s order, he now has the additional option of collecting signatures by email. Accordingly, the State Defendants respectfully request that this Court grant their motion for limited relief from the Court’s April 20, 2020, order and excise the 50% reduction in signatures.
Alternatively, the portion of the Court’s preliminary injunction ordering that signature requirements be reduced by fifty percent should be stayed pending the State Defendants’ emergency appeal. If the Court denies Defendants’ motion under Rule 60(b), the State Defendants alternatively request that this Court stay its order granting the preliminary injunction to the extent it orders a 50% reduction in signatures, pending Defendants appeal to the Sixth Circuit. The standard for a stay pending appeal of the grant of a preliminary injunction is as follows: [W]e consider “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public
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interest in granting the stay.” All four factors are not prerequisites but are interconnected considerations that must be balanced together. [473 F.3d 237, 244 (6th Cir. 2006) (citations omitted).] Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (citations omitted). It bears repeating that a preliminary injunction is an extraordinary remedy, Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009), which is to be granted only if the movant carries its burden of proving that the circumstances clearly demand it. Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2002). Every factor of this balancing test supports an emergency stay.
The State Defendants are likely to prevail on the merits of their narrow appeal regarding the signature reduction. The Court concluded that Plaintiff Esshaki demonstrated a substantial likelihood of success on the merits of his claim that Mich. Comp. Laws §§ 168.133, 168.544f, and the Governor’s Stay-at-Home Orders, as applied in combination to Plaintiff, unconstitutionally burdened Plaintiff’s First and Fourteenth Amendment associational rights. (R. 23, Injunction Order, Page ID ## 330-346). To remedy the burden, the Court extended the filing deadline to May 8, ordered the implementation of a process for collecting signatures by email, and reduced the signature thresholds by 50%. (Id., Page ID # 359-360). The State Defendants are appealing only the Court’s decision to order the 50% across-the-board reduction in signatures. In evaluating the State Defendants’
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likelihood of prevailing on appeal, the Court must consider the likelihood that Defendants can “show that the [ ] court abused its discretion in granting the preliminary injunction.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). Under the abuse-of-discretion standard, an “injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
The State Defendants maintain that the Court abused its discretion in ordering the signature reduction because the Court, albeit unknowingly, relied upon what were premature and ultimately unfounded representations and arguments by Plaintiff Esshaki that a signature reduction was necessary because he otherwise would not be able to meet the signature requirement by the filing deadline due to the pandemic and the Governor’s orders. But as discussed above in Argument I, Esshaki met the filing deadline and the signature requirement, and surely knew or should have known before the Court’s order that he had or was likely to meet the requirement. Thus, there was no factual or legal basis upon which the Court could ground its order to reduce the signature requirement, and granting such relief was an abuse of discretion.
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But even if that reliance was not an abuse of discretion per se, the Court nevertheless went beyond what was necessary to alleviate Plaintiff’s burden as alleged under the circumstances. While the Court concluded that § 544f contributed to the severe burden imposed on Plaintiff, that conclusion did not necessarily compel the conclusion that any remedy include a reduction in required signatures. The reduction in signatures is an unprecedented disruption to the established and traditional process for candidates to gain ballot access in Michigan. The State has a compelling interest in requiring candidates to demonstrate the required modicum of support as established by the Legislature. See Jenness v. Forton, 403 U.S. 431, 442 (1971) (“There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a [ ] candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”); Bullock v. Carter, 405 U.S. 134, 145 (1972); American Party of Texas v. White, 415 U.S. 767, 783 (1974); Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997). Recognizing that to be the case, the State Defendants proposed to the Court the less disruptive option of extending the administrative filing deadline. And combined the extension with an additional option of
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permitting candidates to collect and file signatures by email, along with the preexisting method of circulating by U.S. mail.
The extension of the filing deadline to May 8, and the implementation of a simple process permitting candidates to collect and file signatures via email, in addition to the mail option already available and in use by candidates, would have been sufficient to alleviate the alleged burden to Plaintiff Esshaki. It was thus unnecessary, and an abuse of discretion, for the Court to impose the additional remedy of a signature reduction. Indeed, the Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 2020 WL 1672707 (U.S., April 6, 2020) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam); Frank v. Walker, 574 U.S. 929 (2014); Veasey v. Perry, 574 U. S. __, 135 S. Ct. 9 (2014)). While the State was not necessarily on the eve of the August 4, 2020 primary election, the Court’s order was on the eve of the filing deadline, and significantly altered the rules for candidates by substantially lowering the signature threshold. The 50% reduction presents an opportunity for frivolous candidacies, voter confusion, and a cluttered ballot, even under current conditions. See, e.g., Libertarian Party of Ky v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016) (States have “an important interest in ensuring that candidates demonstrate a ‘significant modicum of support,’ before gaining access to the
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ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.
Finally, the Court’s imposition of a 50% signature reduction went beyond Plaintiff’s requested 40% reduction. The Court, without any discernable basis, concluded that a reasonably diligent candidate should have expected to reach the halfway point for signature gathering with a month remaining before the deadline, and held that the number of signatures required should similarly be reduced by 50%. (R. 23, Injunction Order, Page ID # 358).
The Supreme Court recently reversed portions of an injunction in an elections case in part because the court granted relief that the plaintiffs had not even requested. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 2020 WL 1672707 at *1 (U.S., April 6, 2020) (“Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief.”). The same is true here. Thus, the Court erred or abused its discretion in ordering a 50% reduction in signatures.
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The State Defendants will be irreparably harmed absent a stay and the public interest weighs in favor of a stay. 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 law enjoined by the Court, Mich. Comp. Laws § 168.544f, was duly enacted by the Michigan Legislature. Moreover, the people have an interest in the fair and orderly holding of elections. These factors thus weigh in favor of staying the injunction. See Nader v. Blackwell, 230 F.3d 833, 835 (6th Cir. 2000) (noting that “[a] state’s interest in proceeding with an election increases as time passes, decisions are made, and money is spent.”). Finally, “[t]he probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other.” Michigan Coal of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). Given that Plaintiff is unlikely to succeed on the merits on appeal, see the arguments presented in II.A., Defendants have a lower burden concerning their irreparable harm.
26

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The threat of harm to others is outweighed by the other factors. The Court’s injunction applies to any non-party candidate that meets the terms of the Court’s order. (R. 23, Injunction Order, Page ID ## 359-360.) This means that candidates other than Plaintiff Esshaki could benefit from the Court’s signature reduction, but the number of such individuals is unknown. These candidates, however, will still benefit from the Court’s extension of the filing deadline and the additional opportunity to collect and file signatures electronically via email—even though there now exists little to no record evidence that a candidate would be prevented from collecting the requisite number of signatures during the pandemic—especially given the extension of deadlines. Further, as discussed above, the likelihood of success and irreparable harm factors weigh in favor of Defendants, and thus outweigh the indistinct harm to other candidates.
CONCLUSION AND RELIEF REQUESTED For the reasons stated above, Defendants Governor Gretchen Whitmer, Secretary of State Jocelyn Benson, and Director of Elections Jonathan Brater respectfully request that this Honorable Court grant their motion for limited relief from the Court’s order granting Plaintiff Esshaki a preliminary injunction under Fed. R. Civ. P. 60(b). Alternatively, if the Court denies the request for relief under Rule 60(b), Defendants request that the Court stay that portion of the injunction
27

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reducing the signature thresholds by 50% pending Defendants appeal to the Sixth

Circuit.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: April 22, 2020

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

CERTIFICATE OF SERVICE
I hereby certify that on April 22, 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

28

Case 2:20-cv-10831-TGB-EAS ECF No. 26-1 filed 04/22/20 PageID.405 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG

Plaintiff,

MAG. ELIZABETH A. STAFFORD

and

DEFENDANTS’ EMERGENCY

MATT SAVICH and DEANA BEARD,

MOTION UNDER RULE 60(B)

FOR LIMITED RELIEF FROM

Intervenors-Plaintiffs,

THE COURT’S ORDER

v

GRANTING A PRELIMINARY

INJUNCTION, OR

GRETCHEN WHITMER, Governor of

ALTERNATIVELY FOR A STAY

Michigan, JOCELYN BENSON, Secretary of

PENDING EMERGENCY

state of Michigan, and JONATHAN

APPEAL

BRATER, Director of the Michigan Bureau

of Elections, in their official capacities,

RESPONSE REQUESTED AS

SOON AS POSSIBLE BUT NO

Defendants.

LATER THAN FRIDAY APRIL

24, 2020 GIVEN THE NEED TO

EXPEDITE DEFENDANTS’

APPEAL

______________________________________/

EXHIBIT LIST

A. Declaration of Melissa Malerman

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EXHIBIT A

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 Case 2:20-cv-10831-TGB-EAS ECF No. 34 filed 04/24/20 PageID.509 Page 1 of 14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG MAG. ELIZABETH A. STAFFORD

Plaintiff,

DEFENDANTS’

and

SUPPLEMENTAL BRIEF IN

SUPPORT OF EMERGENCY

MATT SAVICH and DEANA BEARD,

MOTION UNDER RULE 60(B)

FOR LIMITED RELIEF FROM

Intervenors-Plaintiffs,

THE COURT’S ORDER

v

GRANTING A PRELIMINARY

INJUNCTION, OR

GRETCHEN WHITMER, Governor of

ALTERNATIVELY FOR A STAY

Michigan, JOCELYN BENSON, Secretary of

PENDING EMERGENCY

state of Michigan, and JONATHAN

APPEAL

BRATER, Director of the Michigan Bureau

of Elections, in their official capacities,

RESPONSE REQUESTED AS

SOON AS POSSIBLE BUT NO

Defendants.

LATER THAN FRIDAY APRIL

24, 2020 GIVEN THE NEED TO

EXPEDITE DEFENDANTS’

APPEAL

______________________________________/

Gregory J. Rohl (P39185)

Attorney for Plaintiff

41850 W. Eleven Mile Road, Suite 110

Novi, Michigan 48375

248.380.9404

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

Case 2:20-cv-10831-TGB-EAS ECF No. 34 filed 04/24/20 PageID.510 Page 2 of 14
Michael S. Cafferty (P36613) Attorney for Intervenor-Plaintiff Savich 333 West Fort Street, Suite 1400 Detroit, Michigan 48226 313.964.3070
Deana Beard, In Pro Per Intervenor-Plaintiff 2885 South Trenton Drive Trenton, Michigan 48183 734.502.7411
/
DEFENDANTS’ SUPPLEMENTAL BRIEF IN SUPPORT OF EMERGENCY MOTION UNDER RULE 60(B) FOR LIMITED RELIEF
FROM THE COURT’S ORDER GRANTING A PRELIMINARY INJUNCTION, OR ALTERNATIVELY FOR A STAY PENDING
EMERGENCY APPEAL

Case 2:20-cv-10831-TGB-EAS ECF No. 34 filed 04/24/20 PageID.511 Page 3 of 14
TABLE OF CONTENTS Page
Table of Contents ....................................................................................................... i Index of Authorities .................................................................................................. ii Concise Statement of Issues Presented .................................................................... iii Argument....................................................................................................................1
Review of Plaintiff’s petition signatures...............................................1 Intervening Plaintiffs.............................................................................1 The limiting language as to candidates .................................................6 Conclusion and Relief Requested ..............................................................................8 Certificate of Service .................................................................................................9
i

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INDEX OF AUTHORITIES Page
Cases Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir. 2011) ...........................5 Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016).............................5 Stenberg v. Cheker Oil Co., 573 F.2d 921 (6th Cir. 1978)........................................6 Statutes Mich. Comp. Laws § 169.203(1)(c) ..........................................................................7 Mich. Comp. Laws § 169.221....................................................................................7 Mich. Comp. Laws § 169.221(1) ...............................................................................7 Mich. Comp. Laws § 169.224(1) ...............................................................................7 Constitutional Provisions 52 U.S.C. § 30101(2) .................................................................................................6 52 U.S.C. § 30103(a) .................................................................................................6 52 U.S.C.§ 30102(e)(1)..............................................................................................6
ii

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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether the Court’s order granting preliminary injunctive relief
should be amended to exclude the requirement that the signature thresholds be reduced by fifty percent. 2. Whether the portion of the Court’s preliminary injunction ordering that signature requirements be reduced by fifty percent should be stayed pending the State Defendants’ emergency appeal.
iii

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ARGUMENT The State Defendants filed a narrow motion for relief from judgment or alternatively for a stay pending appeal on April 22, 2020. (R. 26, Defs Mtn, Page ID # 365.) On April 23, 2020, the Court held a hearing regarding the motion in which the parties, the intervening parties, and the amici participated. The Court requested that the State Defendants provide additional information and permitted Defendants to address issues raised during the hearing.
Review of Plaintiff’s petition signatures The Court asked Defendants to review Plaintiff’s nominating petition sheets, filed April 21, 2020, to determine how many signatures Plaintiff had collected by April 15, 2020. A review shows that 1,014 people had signed petition sheets by April 15. (Ex 1, Malerman Dec., ¶ 4, Table.) Of that number, 939 signatures were on petition sheets in which circulation had been completed, i.e., both the signers and the circulators had signed by April 15. (Id., ¶ 4, Table.) Thus, Plaintiff Esshaki had collected just over the minimum number of signatures by April 15, 2020, the date of the injunction hearing.
Intervening Plaintiffs Both Intervening Plaintiffs are judicial candidates. Judicial candidates file “non-partisan” nominating petitions. (Ex 1, Malerman Dec, ¶ 20.) Like Esshaki, the Intervening Plaintiffs were not restricted to collecting signatures within a 180day timeframe. (Id., ¶ ¶ 22-23.) Indeed, the earliest date a candidate may begin
1

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circulating nominating petitions is the day the current term of office commenced. (Id., ¶ 23). With respect to the offices sought by Beard and Savich, the earliest date for starting signature collection was January 1, 2015. (Id.)
Intervening Plaintiff Savich was required to file at least 400 valid signatures by the April 21, 2020, filing deadline. (R. 11, Savich Mtn, Page ID #170, ¶ 1-2.) At the time he filed his motion to intervene, he had collected “roughly 200 petition signatures.” (Id., ¶ 2). He asserted that “[d]ue to the COVID-19 shutdown, [he] has been stymied in gathering the requisite signatures by the present permitted methods[.]” (Id., Page ID #171, ¶ 9.) For relief, he requested that the Court order Defendants to extend the deadline or place his name on the ballot “with fewer than the required number of signatures,” or extend the deadline and permit electronic signature gathering. (R. 11-1, Savich Compl., Page ID # 191.) Savich confirmed in his declaration he did not attempt to collect signatures by mail. (R. 31, Savich Dec, Pg ID # 452.) Savich filed his nominating petitions on April 21, he filed approximately 300 signatures, (id., Page ID # 451), or 25% less than the required minimum.1
Intervening Plaintiff Beard was required to file at least 4,000 valid signatures by the April 21, 2020, filing deadline. (R. 17, Beard Mtn, Page ID #
1 See August 4, 2020, Primary Candidate listing, https://miboecfr.nictusa.com/ election/candlist/2020PRI_CANDLIST.html#15022000.
2

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293.) She asserted that she began collecting signatures in January 2020, and in fifty days had collected 3,557 signatures. (Id.)2 But that after social distancing and the Governor’s Executive Order, her ability to obtain signatures declined. (Id., Page ID #293-294.) Beard stated at the April 23 hearing that she had not made any effort to collect signatures by mail. She filed approximately 3,610 signatures on April 21, or 10% less than the required minimum.3
At the hearing, there was discussion about the “cushion” of signatures candidates need to file over the required minimum to account for potentially invalid signatures. (See, e.g., R. 31, Savich Dec, Page ID 451-452.) It is difficult to say with any certainty the cushion a candidate may need. This is because the number of excess signatures candidates tend to file varies greatly depending on the office sought, the candidate’s prior campaign experience (if any), the diligence of the candidate and his or her campaign volunteers in gathering signatures, the competence of petition circulators, the amount of time devoted to signature collection, etc. (Ex 1, Malerman Dec, ¶ 14.)
2 In her motion and at the hearing, Beard indicated that petition form questions had delayed her ability to circulate. But the State Defendants are not aware of any petition form issues that would have delayed her ability to circulate earlier than January 2020. (Ex 1, Malerman Dec, ¶¶ 24-27.) 3 (Id.)
3

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In 2016, 40 candidates filed petitions for U.S. Representative in Congress. Only two candidates were disqualified for failing to file a minimum of 1,000 valid signatures: a candidate who filed 1,030 signatures (3% cushion) and another who filed 1,200 signatures (20% cushion). (Id., ¶ 15.) Regarding judicial candidates, in 2016, 22 candidates sought the office of Circuit Court Judge in the 3rd Judicial Circuit, the office sought by Beard. The sole candidate who was disqualified submitted 7,013 signatures, a 75% cushion, but over half of the signatures submitted were of dubious validity. (Id., ¶ 16.) And 36 non-incumbent candidates sought the office of district court judge in 2016, and while there was no race in the 47th District Court, no district court candidate was disqualified. (Id., ¶ 17.)
Under the terms of the injunction, both Savich and Beard may supplement their filings through 5:00 p.m. on May 8. The arguments at the hearing by Esshaki, suggested that some form of in-person collection could be safely maintained under the Stay-at-Home Orders. And the ACLU’s amicus brief had included the declaration of a city council candidate, in which she stated that she and her volunteers had continued to collect signatures in-person in a safe manner, although the measures taken did make collection difficult. (R. 15-2, Bannister Dec, Page ID #277, ¶¶ 32-34). Regardless, candidates have the opportunity to collect by mail, which can be effective as demonstrated not only by Esshaki’s petitions, but also by the petitions filed by one judicial candidate, over half of which appear to have been
4

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collected by mail. (Ex 1, Malerman Dec, ¶ 28.) Although it is true that mailing comes at a cost, candidates should expect some incidental expenses. See, e.g., Libertarian Party of Ky v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016); Green Party of Arkansas v. Martin, 649 F.3d 675, 683 (8th Cir. 2011).4 Moreover, pursuant to the Court’s order, Plaintiffs and other candidates have the additional option of collecting and filing signatures electronically via email. 5 There should be little to no cost to the candidate associated with this process. It could be accomplished simply through getting the word out and distributing an electronic version of the petition to friends, family, and supporters through email, social media platforms like Facebook, posting on a website, etc.
To warrant enjoining the operation of the statutory signature thresholds, a Plaintiff in this case—whether it is Esshaki as the movant, or the Intervenors as joiners in the relief requested—had or have the burden of demonstrating they are entitled to injunctive relief. Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978). But here the record, such as it is, does not show that any Plaintiff required a 50% reduction in their minimum signature threshold.
4 During the April 23 hearing, Plaintiff Esshaki indicated his 1,000 piece mailing may have cost $2,000 or a little more. But Esshaki has fairly significant funds at his disposal, see https://www.fec.gov/data/committee/C00725259/?cycle=2020, and that amount can certainly be considered incidental. 5 That process has been implemented. See the Bureau of Elections’ website at https://www.michigan.gov/sos/0,4670,7-127-1633---,00.html.
5

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The limiting language as to candidates The terms of the injunction were limited to “all candidates”: (i) who filed a statement of organization under the Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101 et seq., or established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws §§ 169.201 et seq., before March 10, 2020[.] [R. 23, Injunction Order, Page ID # 359-360 (emphasis added).] This language was originally proposed by the State Defendants. At the video hearing, amici raised the issue of how this language should be interpreted. Under the Federal Election Campaign Act, a person running for a seat in the House or Senate becomes a candidate when he or she raises or spends more than $5,000 in contributions or expenditures. 52 U.S.C. § 30101(2). All such candidates must register with a statement of candidacy and designate a principal campaign committee within 15 days of becoming a candidate. 52 U.S.C.§ 30102(e)(1). Within 10 days of that the candidate’s committee must file a statement of organization. 52 U.S.C. § 30103(a).6 Under the Michigan Campaign Finance Act (MCFA), a person becomes a candidate in a number of ways, including when he or she first receives a contribution or makes an expenditure, of any amount, “with a view to bringing about the individual’s nomination or election to an elective office[.]” Mich. Comp.
6 See Plaintiff Esshaki’s filings by way of example, https://www.fec.gov/data/committee/C00725259/?cycle=2020.
6

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Laws § 169.203(1)(c). Once an individual becomes a candidate, he or she “shall form” a candidate committee within 10 days. Mich. Comp. Laws § 169.221(1). And the candidate committee “shall file a statement of organization within 10 days after the committee is formed.” Mich. Comp. Laws § 169.224(1). (See also, Ex 1, Malerman Dec, ¶¶ 9-12.)
Thus, under the MCFA a candidate has a 20-day grace period after becoming a candidate to file his or her candidate committee’s statement of organization. During the grace period, a candidate must establish an official depository and designate a person who is registered to vote in Michigan as the committee’s treasurer; the candidate himself or herself may serve as the committee treasurer. Mich. Comp. Laws § 169.221. (Ex 1, Malerman Dec, ¶ 13.)
The purpose of the limiting language in the injunction is to prevent people who had no intent to run for office before March 10, 2020, from taking advantage of the state of emergency and the significant relief provided by the injunction—the 50% signature reduction and the extension.7 And the simplest, most concrete way to do that is to refer to a candidate’s committee filing at the Federal Election Commission, at the Michigan Bureau of Elections, or at the county clerk’s office.
The injunction language clearly states that it only applies to federal candidates whose candidate committees “filed” their statements of organization on
7 The ACLU proposed a similar limitation. (R. 15, ACLU Brf, Page ID # 268.) 7

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or before March 10, 2020. The intent was to provide for the same result as to state

candidates under the MCFA, meaning it would apply to candidates whose

candidate committees had filed their statement of organization on or before March

10. Thus, the use of the word “established” as to state candidates was intended to

have the same meaning as the word “filed” used in the reference to federal

candidates. There was no intent to treat state candidates more favorably than

federal candidates.

CONCLUSION AND RELIEF REQUESTED For the reasons stated above, the State Defendants respectfully request that

this Honorable Court grant their motion for limited relief from the Court’s order

under Fed. R. Civ. P. 60(b), or alternatively to stay that portion of the injunction

reducing the signature thresholds by 50% pending appeal.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: April 24, 2020

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

8

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CERTIFICATE OF SERVICE I hereby certify that on April 24, 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
9

Case 2:20-cv-10831-TGB-EAS ECF No. 34-1 filed 04/24/20 PageID.523 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG MAG. ELIZABETH A. STAFFORD

Plaintiff,

DEFENDANTS’

and

SUPPLEMENTAL BRIEF IN

SUPPORT OF EMERGENCY

MATT SAVICH and DEANA BEARD,

MOTION UNDER RULE 60(B)

FOR LIMITED RELIEF FROM

Intervenors-Plaintiffs,

THE COURT’S ORDER

v

GRANTING A PRELIMINARY

INJUNCTION, OR

GRETCHEN WHITMER, Governor of

ALTERNATIVELY FOR A STAY

Michigan, JOCELYN BENSON, Secretary of

PENDING EMERGENCY

state of Michigan, and JONATHAN

APPEAL

BRATER, Director of the Michigan Bureau

of Elections, in their official capacities,

RESPONSE REQUESTED AS

SOON AS POSSIBLE BUT NO

Defendants.

LATER THAN FRIDAY APRIL

24, 2020 GIVEN THE NEED TO

EXPEDITE DEFENDANTS’

APPEAL

______________________________________/

EXHIBIT LIST

A. Declaration of Melissa Malerman

Case 2:20-cv-10831-TGB-EAS ECF No. 34-2 filed 04/24/20 PageID.524 Page 1 of 15
EXHIBIT A

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,
Plaintiff, and

No. 2:20-cv-10831 HON. TERRENCE G. BERG

MATT SAVICH and DEANA BEARD,
Intervenors-Plaintiffs, v

MAG. ELIZABETH A. STAFFORD

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. ______________________________________/ Gregory J. Rohl (P39185) Attorney for Plaintiff 41850 W. Eleven Mile Road, Suite 110 Novi, Michigan 48375 248.380.9404

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909 517.335.7659
1

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Michael S. Cafferty (P36613) Attorney for Intervenor-Plaintiff Savich 333 West Fort Street, Suite 1400 Detroit, Michigan 48226 313.964.3070 Deana Beard, In Pro Per Intervenor-Plaintiff 2885 South Trenton Drive Trenton, Michigan 48183 734.502.7411
/
DECLARATION OF MELISSA MALERMAN I, Melissa Malerman, state as follows:
1. I am the Director of the Disclosure, Filings and Compliance Division and a licensed Michigan attorney, (P58884), with the Michigan Department of State, Bureau of Elections. In this capacity, I manage and administer the ballot access and challenge processes for congressional and judicial candidates who are required to file nominating petitions with the Secretary of State. In addition, I supervise the campaign finance program for candidates who are required by the Michigan Campaign Finance Act, 1976 PA 388, Mich. Comp. Laws §§ 169.201 et seq., to register their candidate committees and file periodic disclosure reports with the Secretary of State.
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2. I bring this declaration in response to the Court’s request for additional information regarding the nominating petition filed by Plaintiff Eric Esshaki, to provide citations to state statutes regarding the formation of candidate committees, and to address other questions posed by the Court during the hearing held on April 23, 2020.
Plaintiff Esshaki’s Nominating Petition 3. In response to the Court’s request for information regarding the number of signatures Plaintiff’s campaign collected on or before April 15, 2020, I personally re-reviewed petition sheets that were filed on April 21, 2020. 4. In the following table, the term “mail-in” refers to petition sheets that tend to show distinctive indications of having been sent and/or received by mail,1 and “traditional” refers to petition sheets that do not tend to indicate mailing.2 My findings are as follows:
1 Mail-in petition sheets share the following characteristics: (1) Every circulator of a mailed-in sheet also signed the same sheet as a petition signer; (2) The petition sheets usually contain 1-2 and up to 4 signatures of individuals residing at the same address; and (3) Unlike any of the other petition sheets filed by Plaintiff, the mail-in sheets are creased with a double-parallel fold for ease of mailing. 2 These petition sheets share the following characteristics: (1) In nearly every case, the circulator of the traditional sheet did not sign the same sheet as a petition signer; (2) The petition sheets tend to contain the
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Category
1. Number of signatures on “traditional” sheets that were signed by voters and circulators on or before 4/15

Number of Petition
Signatures dated 4/15 or earlier
832

2. Number of signatures on “mail-in” sheets that were signed by voters and circulators on or before 4/15

107

Subtotal: Number of signatures on complete petition sheets signed by both voters and circulators by 4/15

939

3. Number of signatures on “traditional” sheets containing a combination of signatures gathered before and after 4/15
4. Number of signatures on “mail-in” sheets containing a combination of signatures gathered before and after 4/15
Total: All signatures gathered on or before 4/15

35 40 1,014

5. Categories 1 and 2 above include petition sheets where circulation was completed on or before April 15, 2020, meaning sheets in these categories were signed by voters and circulators by that date.

signatures of individuals who provide different residence addresses; and (3) The majority of these petition sheets contain between 12 and 14 signatures. Most of the traditional petition sheets were signed by petition circulators on or before March 10, 2020.
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6. Categories 3 and 4 above include petition sheets where circulation was in progress on April 15, 2020, as evidenced by petition signers’ signatures dated April 15 or earlier and a circulator date that is later than April 15.
7. The total number of signatures filed irrespective of voters’ dates of signing is 1,263, signifying that Plaintiff’s campaign gathered 249 signatures between April 16 and 20, 2020. No voters’ or circulators’ signatures were dated after April 20.
8. Additionally, I observed that all of Plaintiff’s petition sheets included an identical pre-printed heading:
Establishing a Candidate Committee pursuant to the Michigan Campaign Finance Act
9. The Court’s order issued April 20, 2020 applies to “all candidates who … established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws §§ 169.201 et seq., before March 10, 2020[.]” 5

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10. Mich. Comp. Laws § 169.203(1) defines the term “candidate” to include:
(1) . . . an individual who meets 1 or more of the following criteria:
(a) Files a fee, an affidavit of incumbency, or a nominating petition for an elective office.
*** (c) Receives a contribution, makes an expenditure,3 or gives consent for another person to receive a contribution or make an expenditure with a view to bringing about the individual’s nomination or election to an elective office, whether or not the specific elective office for which the individual will seek nomination or election is known at the time the contribution is received or the expenditure is made. . . .
11. Once an individual becomes a candidate, he or she “shall form” a
candidate committee within 10 days. Mich. Comp. Laws §
169.221(1).
12. The candidate committee “shall file a statement of organization
within 10 days after the committee is formed.” Mich. Comp. Laws §
169.224(1).
13. Thus, under the Michigan Campaign Finance Act a candidate has
a 20-day grace period after becoming a candidate to file his or her
3 The term “contribution” is defined in Mich. Comp. Laws § 169.204, and the term “expenditure” in Mich. Comp. Laws § 169.206.
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candidate committee’s statement of organization. During the grace period, a candidate must establish an official depository and designate a person who is registered to vote in Michigan as the committee’s treasurer; the candidate himself or herself may serve as the committee treasurer. Mich. Comp. Laws § 169.221.
Cushion of Excess Signatures 14. The number of excess signatures candidates tend to file varies
greatly depending on the office sought, the candidate’s prior campaign experience (if any), the diligence of the candidate and his or her campaign volunteers in gathering signatures, the competence of petition circulators, the amount of time devoted to signature collection, and so on. 15. In 2016,4 40 candidates filed petitions for the office of U. S. Representative in Congress ranging from 1,030 to 2,000 signatures each. Only two candidates were disqualified for failing to file a minimum of 1,000 valid signatures: a candidate who filed 1,030
4 2016 Michigan Candidate Listing, https://miboecfr.nictusa.com/election/candlist/16PRI/16PRI_CL.HTM.
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signatures (3% cushion) and another who filed 1,200 signatures (20% cushion).5 16. In 2016,6 22 candidates sought the office of Circuit Court Judge in the 3rd Judicial Circuit. The sole candidate who was disqualified submitted 7,013 signatures, a 75% cushion, but over half of the signatures she submitted were “of dubious authenticity where the signature on the petition did not match the voter’s signature on file, was written in handwriting that was substantially the same as handwriting for other petition entries, or both.” See Exhibit 1. 17. In 2016, no nominating petitions were filed for the office of District Court Judge in the 47th District. However, 36 candidates for District Court Judge sought election in other judicial districts in 2016.7 No candidate who sought election to the office of District Court Judge was disqualified in 2016.
5 Id. 6 Id. 7 Id.
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18. Given the variety of outcomes described above, the Bureau of Elections does not provide advice to candidates regarding a standard number or percentage of excess signatures. Petition Circulation Period for Judicial Candidates
19. During the April 23 hearing, it was suggested that judicial candidates are limited to a petition circulation period of 180 days. That is incorrect.
20. Judicial candidates file “non-partisan” nominating petitions, which are used for elective offices that do not include political party labels on the ballot. Mich. Comp. Laws §§ 168.412, 413. This form requirement is explained in the publication, “Filing Requirements for Non-Incumbent Judicial Candidates”:8
8 Filing Requirements for Non-Incumbent Judicial Candidates, https://www.michigan.gov/documents/sos/Web_Memo_January_31_2020 _680045_7.pdf.
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21. The “non-partisan nominating petition” is separate and distinct from the “qualifying petition” form, which is used by candidates without political party affiliation who are seeking a partisan office. Colloquially, these are sometimes known as “independent” candidates.
22. Candidates seeking a partisan office without affiliating themselves with one of the ballot-eligible political parties must file “qualifying petitions” containing signatures dated within 180 days of the date of filing. Mich. Comp. Laws §§ 168.590a, 590b, 590c.
23. As candidates seeking election to a non-partisan office, neither Intervenor Beard nor Intervenor Savich were restricted to collecting signatures within the 180-day timeframe. Indeed, the earliest date a candidate may begin circulating nominating petitions is the day the current term of office commenced. Op. Atty. Gen. No. 6495 (February 8, 1988).9 With respect to the office of Circuit Court Judge, 3rd Judicial Circuit, that date was January 1, 2015, and for the office of District Court Judge, 47th District, that date was January 1, 2015.
9 https://www.ag.state.mi.us/opinion/datafiles/1980s/op06495.htm. 10

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Recent Petition Form Changes 24. The Bureau of Elections recently adopted an optional, revised
countywide petition format for use during the 2020 election cycle. The new format is designed to reduce the number of disqualifying signature errors made by petition signers, as explained in the publication, “Circulating Countywide Nominating and Qualifying Petition Forms,”10
10 Circulating Countywide Nominating and Qualifying Petition Forms, p. 2: https://www.michigan.gov/documents/SOS_ED105_County_Pet_Form_7 7019_7.pdf
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25. Importantly, use of the new format is entirely optional during the 2020 election cycle. Considering candidates seeking election in 2020 may have begun circulating nominating petitions years ago, it would be unfair to impose a mandatory form change in the midst of the election cycle.
26. Instead, written guidance issued by the Bureau of Elections makes clear that candidates may file nominating petitions bearing the 2015 revision date, 2019 revision date, or any combination thereof:
Id. at 3. 27. There was no change in the countywide nominating petition form
that would have prevented Intervenor Beard from circulating nominating petitions earlier in the election cycle.
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Mail-in Petition Sheets Filed by Another Candidate 28. On April 21, 2020, Judge Kathleen Feeney of the 17th Circuit
Court filed 954 nominating petition sheets containing approximately 4,000 signatures.11 Over half of the petition sheets (541 of 954, 57%) submitted by Judge Feeney appeared to be mail-in petitions. The earliest signature date observed on the mail-in sheets was April 5, 2020. I declare under penalty of perjury that the foregoing is true and correct. Executed on: 4/24/20
11 An incumbent Judge is not required to file nominating petitions unless he or she does not file an Affidavit of Candidacy indicating an intention to seek re-election by March 23, 2020.
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May 23, 2016

REVIEW OF NOMINATING PETITION

Darnella Denise Williams Candidate for Judge of the 3rd Circuit Court
Regular Term, Non-Incumbent Position

NUMBER OF VALID SIGNATURES REQUIRED: 4,000 signatures.

TOTAL FILING: 7,004 signatures.

RESULT OF PETITION REVIEW: 2,613 valid signatures; 4,391 invalid signatures.

Total number of signatures filed: Address and jurisdiction errors by signers (incomplete or incorrect address, dual jurisdiction entry, etc.): Date errors by signers (dated after circulator, invalid date such as date of birth): Other signature errors (incomplete or omitted signatures, duplicates): Illegible entries (Note – the entire entry is illegible)1: Signer not registered to vote or not registered in district: Signature did not match signature on file: Circulator errors (date omitted, etc.):

7,004 196
23
18 58 457 3,630 9

Valid signatures:

2,613

The staff review indicated that Ms. Williams’ nominating petition contained 3,630 signatures of dubious authenticity where the signature on the petition did not match the voter’s signature on file, was written in handwriting that was substantially the same as handwriting for other petition entries, or both. These signatures were discounted in the “signature did not match signature on file” category above.

FINAL RESULT: 2,613 valid signatures.

STAFF RECOMMENDATION: Determine petition insufficient.

1 Entries are not invalidated merely because the signature alone is illegible; the basis for discounting these signatures is that all of the following fields are illegible, making it impossible to search for and locate a matching record for these individuals within the QVF: signature and printed name and street address/rural route.
BU REA U OF ELECT I ON S RICH A RD H . A U ST IN BU I LD I N G  1 ST FLOOR  4 3 0 W . A LLEGA N  LA N SIN G, M ICH I GA N 4 8 9 1 8
w w w . M ichigan. gov/ sos  (517) 373-2540

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 37 filed 04/25/20 PageID.575 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position in Wayne County and in her individual capacity.
Plaintiffs,

2:20-CV-10831-TGB
ORDER DENYING DEFENDANTS’ RULE 60(b) MOTION AND REQUEST FOR STAY PENDING APPEAL

vs.

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Before the Court is Defendants’ Emergency Motion Under Rule 60(b) for Limited Relief from the Court’s Order Granting Preliminary

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Injunction, or Alternatively for a Stay Pending Emergency Appeal. ECF No. 26.
I. State’s Requests for 60(b) Relief or Stay Pending Appeal The State Defendants, citing new evidence not available to the
State or the Court at the time of the Court’s April 20, 2020 Order, request that this Court either amend its April 20, 2020 Order granting a preliminary injunction to omit the Court’s 50% signature reduction, or stay execution of that part of the Order pending appeal to the United States Court of Appeals for the Sixth Circuit. ECF No. 26.
The State contends that the new evidence—Mr. Esshaki’s April 21st filing of 1,263 signatures—demonstrates that the 50% signature reduction by the Court was unnecessary. ECF No. 26, PageID.377-78; Malerman Decl. ¶ 6, ECF No. 26-2, PageID.414. The State argues that had this Court had evidence regarding Mr. Esshaki’s late signaturegathering success, it would not have issued its April 20, 2020 injunction. Id.
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II. New Evidence This Court issued its injunction on April 20, 2020. ECF No. 23. On
April 21, 2020, Mr. Esshaki personally appeared in Lansing and presented 1,263 signatures to the State’s Bureau of Elections. Malerman Decl. ¶¶ 4, 6, ECF No. 26-2, PageID.410, 14. According to the State, of the signatures Plaintiff had gathered, 242 appeared to have been signed in-person after the March 23rd Stay-at-Home Order was issued. Id. ¶ 5(e). An additional 228 signatures appeared to have been gathered by mail between April 7th and April 19th. Id. ¶ 5(g).
In response to the State’s emergency motion, the Court held a hearing over the digital platform Zoom on April 23, 2020, and permitted the parties and amici curiae to submit additional briefing by noon on April 24, 2020. Such papers were timely filed and included briefing from the State (ECF No. 34), Mr. Esshaki (ECF No. 33), Mr. Savich (ECF No. 31), Ms. Beard (ECF No. 36) and the ACLU of Michigan, which submitted the declaration of Mr. Dennis Donahue (ECF No. 35).
In response to the instant Motion, Mr. Esshaki states that the facts he presented to the Court on April 15th as to the number of signatures he had gathered and the effectiveness of his mail campaign were based
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on the information he had at the time. Esshaki Decl. ¶ 4, 9, ECF No. 33, PageID. 502-03. Esshaki said he achieved the signature requirements previously considered impossible because of the “heightened press coverage” from this lawsuit, which he believes “had an impact on grass roots interest in filling out and delivering petitions” to his campaign. Id. ¶ 10. Esshaki states that he mailed approximately 2,000 blank petition forms at a cost of $4,800, and that the overall response rate for mailed petitions was approximately 20%, but that it was likely that half of the mailed petitions contained technical defects rendering them invalid. Esshaki Decl. ¶¶ 5, 8, 20, PageID.502-06. He further states that other petitions were left in his mailbox, Id. ¶ 15, and he gathered additional signatures personally while taking walks.
In Mr. Savich’s supplemental declaration, he states that as of the date of the Stay-at-Home Order, March 23, 2020, he had 219 of the 400 signatures he needed to get his name on the ballot. Savich Decl. ¶ 1, ECF No. 31, PageID.451. As of April 21, 2020, he had obtained 326 signatures, of which he estimates 260 are valid. Id. ¶ 2. He did not attempt to obtain signatures by mail. Id. ¶ 3.
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Ms. Beard states that at the time the Stay-at-Home Order went into effect, she had 3557 of the 4,000 signatures she needed to get on the ballot. Beard Decl. ¶ 1, ECF No. 36, PageID.573. She estimates that at the rate her campaign was collecting signatures before the Stay-at-Home Order, she would have collected at least 6,200 signatures if not for the Stay-at-Home Order. Beard Br., ECF No. 36, PageID.557. On April 21, 2020, she submitted 3610 signatures. Beard Decl. ¶ 2, ECF No. 36, PageID.573. She sent out three petitions by mail and received none back. Id. ¶ 3, 5. She states that absent the Court’s 50% reduction, “there is literally no way” she would be able to obtain the required number of signatures, even with the ability to obtain electronic signatures. Beard Br., ECF No. 36, PageID.565.
The ACLU submitted the declaration of Mr. Donahue, a judicial candidate for the Wayne County Circuit Court. ECF No. 35-1. Mr. Donahue states that at the time the Stay-at-Home Order was issued, he had obtained 1,100 of the 4,000 signatures he needed to get on the ballot. Donahue Decl. ¶¶ 8, 12, ECF No. 35-1, PageID.543-44. He had obtained 1,000 signatures in ten days, and planned to collect 5,000 signatures so as to ensure a comfortable cushion after challenges. Id. ¶ 7, 8. Mr.
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Donahue states that after consulting with a canvassing agent, he believes that in order to obtain 3,000 signatures by mail, he would likely have to mail between 30,000 and 60,000 letters, at a cost of $17,400 to $34,800. Id. ¶ 17. Donahue states that he cannot afford such a mail campaign, and as a result of the restrictions put in place by the Stay-at-Home Order, he has only obtained a handful of signatures since March 23, 2020. Id. ¶ 19. Donahue states that absent the Stay-at-Home Order, he would have collected enough signatures to earn a place on the ballot, but that because he cannot afford a mail-only campaign, the only way he would be able to qualify for the August 4, 2020 ballot is if the 50% signature reduction ordered by the Court remains in effect. Id. ¶ 21.
Finally, the State submitted supplemental briefing regarding the signatures that Mr. Esshaki gathered after oral argument on April 15, 2020 and also cited the mail signature campaign of Judge Kathleen Feeney, who apparently obtained 57% of her 4,000 signatures by mail after April 5, 2020. Malerman Decl. ¶ 28, ECF No. 34-2, PageID.537. The State’s briefing does not contain any information regarding how much money Judge Feeney spent on her mail campaign or how many pieces of mail she sent out.
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III. Discussion a. Rule 60(b)(2) Motion
Federal Rule of Civil Procedure 60(b)(2) provides that “[o]n motion and just terms, the court may relieve a party . . . from a[n] . . . order” based “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). To prevail on a motion under Rule 60(b)(2) based on newly discovered evidence, a party “must demonstrate (1) that it exercised due diligence in obtaining the information and (2) [that] the evidence is material and controlling and clearly would have produced a different result if presented before the original judgment.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998)).
The State correctly points out that the Court’s April 20, 2020 Order primarily referenced the arguments made by Mr. Esshaki. The State is incorrect, however, that the new evidence it cites would have produced a different result regarding the Court’s ultimate decision to reduce the signature requirement by 50%. This is in large part because the State’s contention that Mr. Esshaki was the only Plaintiff this Court was
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considering when it reduced the signature requirement by 50% is mistaken. In fact, when discussing the appropriate reduction, and Esshaki’s 40% suggestion, the Court explicitly stated that “[e]ven such a [40%] reduction, however, would still present a significant hurdle for otherwise viable candidates, including those whose signature requirements are lower than Plaintiff’s.” ECF No. 23, PageID.357. The Court then referenced Ms. Bannister, an Ann Arbor City Councilwoman who had gathered only 40 of the 100 signatures she needed at the time the Stay-at-Home order was issued. See id.; Bannister Decl. ¶ 11, ECF No. 15-2. Elsewhere in the Order, the Court explicitly referred to Plaintiffs Savich and Beard, as well as Mr. Finley, who had filed an amicus brief in this matter. The Court considered then, as it does now, that as of March 23, 2020, Mr. Savich had only collected 219 of the 400 signatures required to get his name on the ballot, Savich Decl. ¶ 1, ECF No. 31, PageID.451, Ms. Bannister had collected 40 of 100, Bannister Decl. ¶ 11, ECF No. 15-2, Mr. Finley 300 of 1000, ECF No. 32, PageID.497 and Ms. Beard 3557 of 4,000, Beard Decl. ¶ 1, ECF No. 36, PageID.573. During the hearing Mr. Finley also raised the point that, based on his knowledge, only one of the five candidates seeking to qualify for the
8

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judgeship he was seeking had been able to gather a sufficient number of signatures. Finley Br., ECF No. 13, PageID.212. In arriving at the 50% reduction, the Court considered the challenges those candidates would face gathering additional signatures—even assuming the existence of a digital signature option and an extended deadline—and factored in each candidate’s need to collect signatures above the minimum statutory threshold in order to have a “cushion” in case a significant number of signatures should be invalidated.
The “new” information cited by the State and the supplemental declarations filed April 24th do not—and would not have—changed the Court’s decision to reduce that signature requirement to 50% of the statutory requirement. First, Mr. Esshaki’s last-minute success in receiving signatures through the mail suggests that the postal service in his area may be operating more efficiently than had earlier been reported.1 It is not evidence that the same can be said for the entire State, where delays continue to be reported.2 As the Court stated in its
1 Some SE Michigan zip codes to receive mail every other day due to COVID-19, Fox2Detroit (Apr. 9, 2020), https://www.fox2detroit.com/news/some-se-michigan-zip-codes-to-receive-mail-every-otherday-due-to-covid-19. 2 See, e.g., Oakland County Residents Report Delays in Mail Delivery, Oakland Press (Apr. 22, 2020) https://www.theoaklandpress.com/news/coronavirus/oakland-county-residents-report-delays-in-maildelivery/article_be9362, 96-840d-11ea-bf7a-731dcf043be3.html.
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Order, the ability of the Postal Service to deliver mail efficiently during this pandemic is an unknown, and there is reason to doubt that it is operating at its usual capacity.
Second, that Mr. Esshaki successfully funded two 1000-petition mail campaigns cannot be considered as evidence that such an option is equally available for many candidates. Mr. Esshaki spent $4,800 on mailings, and his experience suggests that a mail campaign may yield approximately a ten percent valid signature return rate. See Esshaki Decl. ¶¶ 5, 8, 20, PageID.502-06. Mr. Esshaki was fortunate in that he only needed to gather a few hundred additional signatures by mail. Mr. Donahue, a judicial candidate who was able to obtain 1,000 signatures in ten days before the Stay-at-Home Order, would need to collect 3,0004,000 by mail in order to meet the statutory requirements and have a cushion should any signatures be deemed invalid. Donahue Decl. ¶ 8, 16, ECF No. 35-1, PageID.543-45. Such a mailing would cost him between $17,400 and $34,800, which his campaign cannot afford. Id. ¶ 17, 19. Without a 50% reduction, he will be left off the ballot.
Third, Esshaki’s apparent success in obtaining approximately 242 signatures by means other than the mail since April 9, 2020 does not tip
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the scales in favor of the State. For one, as Mr. Esshaki hypothesized, this effect could be unique to him, as he believes that the publicity he garnered from this lawsuit may have caused individuals to sign his petitions and leave them in his mailbox. Esshaki Decl. 10, ECF No. 33, PageID. 503-04. Other candidates have not reported signature petitions spontaneously appearing in their mailboxes. Moreover, while Esshaki stated at oral argument on April 23rd that the signatures he personally gathered during the lockdown were obtained while on walks permitted by the Stay-at-Home Order, he could not account for how all of his circulators gathered their signatures during this time. If any of these signatures had to be gathered by means that violated the Stay-at-Home Order, surely such success in “lawlessly” gathering signatures should not be considered proof that there is no need to reduce the signature requirement. Indeed, testimony in this case describes the extreme lengths that candidates have been forced to go to in order to collect inperson signatures by means that do not violate the Stay-at-Home Order. For example, one candidate described “me[eting] supporters in parking lots and open spaces, where they threw plastic bags of completed petitions for me to catch.” Bannister Decl. ¶ 34, ECF No. 15-2,
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PageID.278. Even putting aside the fact that such a candidate would be
leaving his or her home for a purpose not clearly permitted by the Stay-
at-Home Order, such means are clearly not scalable for candidates who
need to collect thousands of signatures.
For these reasons, the Court would not have reached a different
conclusion on the 50% reduction had it had the new information cited by
Defendants at the time it issued its April 20, 2020 Order.
b. Request to Stay Reduction Pending Appeal
A court considering a request to stay pending appeal of the grant of
a preliminary injunction must consider:
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. All four factors are not prerequisites but are interconnected considerations that must be balanced together. [473 F.3d 237, 244 (6th Cir. 2006) (citations omitted).] Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244
(6th Cir. 2006) (citations omitted).
The State asserts that this Court abused its discretion by granting
Plaintiffs’ motion for a preliminary injunction because “lower federal
courts should ordinarily not alter the election rules on the eve of an 12

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election.” ECF No. 26, PageID.400 (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., 2020 WL 1672707 (U.S., April 6, 2020)). While this may ordinarily be true, as the State concedes, we are not on the eve of an election. The primary is not until August 4, 2020. The State is unlikely to prevail on appeal in showing that the Court abused its discretion on these grounds. Regarding whether the State will be irreparably harmed in the absence of a stay, the State asserts that the reduction in signatures is “an unprecedented disruption to the established and traditional process for candidates to gain ballot access in Michigan.” ECF No. 26, PageID.399. The Court invited the State during oral argument to substantiate this assertion, but it was unable to do so. Far from demonstrating harm, the State ignores the glaring inequity at the heart of this case: Before the Court is evidence from multiple candidates that but for the State’s own last-minute intervention in the homestretch of the signature gathering time period, the Plaintiffs in this case would have been able to gather enough signatures to secure a place on the August 4, 2020 primary ballot. If there had not been a March 23, 2020 Stay-at-Home Order, this case would not exist.
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Yet, despite the enormity of the obstacle the March 23, 2020 Stayat-Home Order erected to block the signature-gathering efforts of candidates, the State has refused to budge on reducing the signature requirement. Initially, the State opposed any and all relief for Plaintiffs. ECF No. 6. If the Court had not granted injunctive relief, Ms. Beard, Mr. Savich, and Mr. Donahue all would have already been eliminated from the ballot, since none had met the statutory signature requirements as of April 21, 2020. Each presented evidence that absent the Stay-at-Home Order, they very likely would have collected enough signatures to make it onto the ballot. Consequently, the Court was forced to fashion a remedy. As this very Motion demonstrates, the operative facts in this once-in-a-generation pandemic are constantly changing, and many important variables, such as the current operating capacity of the Postal Service, the viability of electronic-based signature gathering, and whether Governor Whitmer would extend the Stay-at-Home Order to cover the extended signature gathering period, were unknowns at the time the Court reduced the signature requirement down to 50%. Except
14

Case 2:20-cv-10831-TGB-EAS ECF No. 37 filed 04/25/20 PageID.589 Page 15 of 16
for the extension of the Stay-at-Home Order,3 the others are still unknowns.
In this uncertain context, after considering the information the Court had regarding Mr. Esshaki, Ms. Beard, Mr. Savich, and other candidates through the several amicus curiae briefs filed in this case, the Court reduced the signature requirement by 50%. Evidence in the record then and now shows that for reasons already discussed regarding the viability of other signature collecting options, a reduction of anything less than 50% would likely keep Ms. Beard, Mr. Savich, Mr. Donahue and possibly Ms. Bannister and Mr. Finley off the ballot, despite their signature collecting diligence prior to the Stay-at-Home Order. These candidates—two of whom are parties—requested relief that would make it possible for them to appear on the August 4, 2020 primary ballot, and the Court granted such relief. It is clear that they and other candidates like them would be harmed if a stay were to be granted. Nor would the public interest in the fair administration of ballot access requirements be served by a stay of the Court’s order. Consequently, the Court finds that
3 On April 24, 2020 the Governor signed Executive Order 2020-59, which extends the stay-at-home restrictions through May 15, 2020. Mich. Exec. Order 2020-59. The extension ensures that traditional, in-person door-to-door signature gathering will remain a criminal offense for the entirety of the signature gathering extension.
15

Case 2:20-cv-10831-TGB-EAS ECF No. 37 filed 04/25/20 PageID.590 Page 16 of 16
the 50% reduction is warranted, and Defendants have failed to demonstrate that they are likely to prove this Court abused its discretion in reducing the signature requirement by 50% on appeal. The request for a stay will therefore be denied.
IV. Conclusion For the reasons above, Defendants’ Emergency Motion Under Rule
60(b) for Limited Relief from the Court’s Order Granting Preliminary Injunction, or Alternatively for a Stay Pending Emergency Appeal (ECF No. 26) is DENIED.
IT IS SO ORDERED. DATED this 25th day of April, 2020.
BY THE COURT: /s/Terrence G. Berg TERRENCE G. BERG United States District Judge
16

 
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 General Docket United States Court of Appeals for the Sixth Circuit

Court of Appeals Docket #: 20-1336 Nature of Suit: 3441 Civil Rights: Voting Eric Esshaki v. Gretchen Whitmer, et al Appeal From: Eastern District of Michigan at Detroit Fee Status: fee paid

Docketed: 04/22/2020

Case Type Information: 1) Civil 2) Private 3) Civil Rights

Originating Court Information:

District: 0645-2 : 2:20-cv-10831

Court Reporter: Linda M. Cavanagh

Trial Judge: Terrence George Berg, U.S. District Judge

Date Filed: 03/31/2020

Date Order/Judgment:

Date NOA Filed:

04/20/2020

04/21/2020

Prior Cases: None

Current Cases: None

ERIC ESSHAKI, as candidate for United States Congress in his individual capacity
Plaintiff - Appellee
MATT SAVICH Intervenor - Appellee
DEANA BEARD Intervenor - Appellee

Eric Esshaki Direct: 313-460-1421 [COR LD NTC Retained] Law Office 1731 Hazel Street Birmingham, MI 48009
Michael S. Cafferty Direct: 313-942-5605 [COR LD NTC Retained] Law Offices 333 W. Fort Street Suite 1100 Detroit, MI 48226
Deana Beard Direct: 734-502-7411

[NTC Pro Se] 2885 S. Trenton Drive Trenton, MI 48183
v.

GRETCHEN WHITMER, Governor of Michigan
Defendant - Appellant

Heather S. Meingast, Assistant Attorney General Direct: 517-335-7659 [COR LD NTC Retained] Michigan Department of Attorney General P.O. Box 30736 Lansing, MI 48909
Erik A. Grill Direct: 517-335-7659 [COR NTC Retained] Michigan Department of Attorney General P.O. Box 30736 Lansing, MI 48909

JOCELYN BENSON, Secretary of State of Michigan
Defendant - Appellant

Heather S. Meingast, Assistant Attorney General Direct: 517-335-7659 [COR LD NTC Retained] (see above)
Erik A. Grill Direct: 517-335-7659 [COR NTC Retained] (see above)

JONATHAN BRATER, Director of the Michigan Bureau of Elections
Defendant - Appellant

Heather S. Meingast, Assistant Attorney General Direct: 517-335-7659 [COR LD NTC Retained] (see above)

Erik A. Grill Direct: 517-335-7659 [COR NTC Retained] (see above)
ERIC ESSHAKI, as candidate for United States Congress in his individual capacity
Plaintiff - Appellee

MATT SAVICH; DEANA BEARD Intervenors - Appellees
v. GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities
Defendants - Appellants

04/22/2020 1
3 pg, 13.09 KB

Civil Case Docketed. Notice filed by Appellants Jocelyn Benson, Jonathan Brater and Gretchen Whitmer. Transcript needed: n. (JEC) [Entered: 04/22/2020 10:58 AM]

04/22/2020 2

The case manager for this case is: Jill Colyer (JEC) [Entered: 04/22/2020 11:01 AM]

04/23/2020 3
1 pg, 331.07 KB

APPEARANCE filed for Appellants Jocelyn Benson, Jonathan Brater and Gretchen Whitmer by Heather S. Meingast. Certificate of Service: 04/23/2020. [20-1336] (HSM) [Entered: 04/23/2020 03:03 PM]

04/23/2020 4

TRANSCRIPT ordered from Linda Cavanagh, filed by Ms. Heather S. Meingast for Jocelyn Benson, Jonathan Brater and Gretchen Whitmer. [4] ; ----- This is to order a transcript of the following proceedings and to certify that satisfactory financial arrangements have been completed ----- Transcript ordered on: 04/21/2020 ; District Court Judge/Magistrate: Terrence G. Berg ; Hearing Dates: 04/15/2020, Plaintiff's motion for TRO or injunctive relief ; Other: Financial arrangements are being made. ; Method of Payment: Private Funds ; Court reporter acknowledgement is due in 14 days. Certificate of Service: 04/23/2020. [20-1336] (HSM) [Entered: 04/23/2020 03:11 PM]

04/23/2020 5
1 pg, 331.05 KB

APPEARANCE filed for Appellants Jocelyn Benson, Jonathan Brater and Gretchen Whitmer by Erik A. Grill. Certificate of Service: 04/23/2020. [20-1336] (EAG) [Entered: 04/23/2020 03:14 PM]

04/23/2020 6

NOTIFICATION: Setting acknowledgement deadline, relating to transcript order, [4]. Linda M. Cavanagh's acknowledgement is due 05/07/2020. (JEC) [Entered: 04/23/2020 04:06 PM]

04/23/2020 7

Court Reporter Acknowledgement filed by Ms. Linda M. Cavanagh, for transcript [4] ; Arrangements for payment were made on 04/21/2020 ; Estimated completion date: 04/23/2020 ;

Estimated number of pages: 44. [20-1336] (LMC) [Entered: 04/23/2020 04:57 PM]

04/24/2020 8

NOTIFICATION: Setting transcript deadline, relating to transcript order, [4] Transcript to be filed in district court by Linda M. Cavanagh by 05/26/2020. (JEC) [Entered: 04/24/2020 07:19 AM]

04/24/2020 9
1 pg, 65.52 KB

CIVIL APPEAL STATEMENT OF PARTIES AND ISSUES filed by Attorney Ms. Heather S. Meingast for Appellants Jocelyn Benson, Jonathan Brater and Gretchen Whitmer. Certificate of Service:04/24/2020. [20-1336] (HSM) [Entered: 04/24/2020 09:58 AM]

04/24/2020 10

Transcript, [4], has been filed in the District Court on 04/24/2020 ; Court Reporter: Ms. Linda M. Cavanagh ; Actual Number of Pages: 45 ; Actual Number of Volumes: 1 ; [20-1336] (LMC) [Entered: 04/24/2020 10:31 AM]

04/26/2020 11

EMERGENCY MOTION filed by Ms. Heather S. Meingast for

45 pg, 367.29 KB Jocelyn Benson, Jonathan Brater and Gretchen Whitmer to stay

district court order. Certificate of Service: 04/26/2020. [20-1336] --

[Edited 04/27/2020 by AEG] (HSM) [Entered: 04/26/2020 10:16

PM]

04/26/2020 12
3 pg, 123.83 KB

MOTION filed by Ms. Heather S. Meingast for Jocelyn Benson, Jonathan Brater and Gretchen Whitmer to exceed page limit. Certificate of Service: 04/26/2020. [20-1336] (HSM) [Entered: 04/26/2020 10:19 PM]

04/27/2020 13
1 pg, 10.16 KB

LETTER SENT to Ms. Deana Beard for Deana Beard, Mr. Michael S. Cafferty for Matt Savich, and Mr. Gregory J. Rohl for Eric Esshaki, notifying that each party has an opportunity to respond to appellants' motion to stay district court order. Response due 04/28/2020 at 9:00 a.m. (EST) for Michael S. Cafferty and Gregory J Rohl and Deana Beard. (LAJ) [Entered: 04/27/2020 01:27 PM]

04/27/2020 14
1 pg, 85.68 KB

APPEARANCE filed for Appellee Eric Esshaki by Eric Esshaki. Certificate of Service: 04/27/2020. [20-1336] (EE) [Entered: 04/27/2020 03:21 PM]

04/27/2020 15
5 pg, 91.61 KB

MOTION filed by Eric Esshaki for Eric Esshaki to extend timeCertificate of Service: 04/27/2020. [20-1336] (EE) [Entered: 04/27/2020 04:21 PM]

04/27/2020 16
1 pg, 38.32 KB

APPEARANCE filed for Appellee Matt Savich by Micahel S. Cafferty. Certificate of Service: 04/27/2020. [20-1336] (MSC) [Entered: 04/27/2020 05:39 PM]

04/27/2020 17
9 pg, 223.12 KB

RESPONSE in opposition filed regarding a motion stay district court order, [11]; previously filed by Ms. Heather S. Meingast for Gretchen Whitmer, Jocelyn Benson and Jonathan Brater. Response from Attorney Mr. Michael S. Cafferty for Appellee Matt Savich Certificate of Service:04/27/2020. [20-1336] (MSC) [Entered: 04/27/2020 05:51 PM]

04/27/2020 18
2 pg, 28.3 KB

ORDER GRANTING the motion to extend time to file a response to appellants' emergency motion to stay a district court order [15] filed by Eric Esshaki. The deadline to file a response has been extended to 9:00 a.m. (EST) on April 29, 2020 for all appellees. Entered by order of the court. (LAJ) [Entered: 04/27/2020 06:17 PM]

04/29/2020 19
19 pg, 9.31 MB

RESPONSE in opposition filed regarding a motion stay district court order, [11]; previously filed by Ms. Heather S. Meingast in 20-1336. Response from Party Deana Beard Certificate of Service:04/29/2020. (JEC) [Entered: 04/29/2020 07:52 AM]

04/29/2020 20

RESPONSE in opposition filed regarding a motion, [11];

23 pg, 266.47 KB previously filed by Ms. Heather S. Meingast for Gretchen

Whitmer, Jocelyn Benson and Jonathan Brater. Response from

Attorney Eric Esshaki for Appellee Eric Esshaki Certificate of

Service:04/29/2020. [20-1336] (EE) [Entered: 04/29/2020 08:26

AM]

05/05/2020 21
11 pg, 250.4 KB

ORDER filed: We GRANT the motion [11] IN PART and issue stay as to the injunction’s three compulsory directives that re-write the statute, but we DENY the remainder of the motion and uphold the core of the injunction, which enjoins the State from enforcing the statute’s two ballot-access provisions at issue unless the State provides some reasonable accommodation to aggrieved candidates. Alice M. Batchelder, Jane Branstetter Stranch (CONCURRING IN PART AND DISSENTING IN PART), and John K. Bush, Circuit Judges. (CL) [Entered: 05/05/2020 05:39 PM]

06/11/2020 22
5 pg, 30.58 KB

BRIEFING LETTER SENT setting briefing schedule: appellant brief due 07/21/2020;. appellee brief due 08/20/2020; (JEC) [Entered: 06/11/2020 10:56 AM]

07/21/2020 23
0 pg, 0 KB

***DOCUMENT LOCKED. INCORRECT ENTRY***MOTION filed by Ms. Heather S. Meingast for Jocelyn Benson, Jonathan Brater and Gretchen Whitmer to dismiss Appellants' Motion to Dismiss Based on Mootness and to Vacate Under the Munsingwear Doctrine Certificate of Service: 07/21/2020. [20-1336] -[***COUNSEL IS DIRECTED TO REFILE AS A MOTION TO

REMAND CASE.***--[Edited 07/22/2020 by JEC] (HSM) [Entered: 07/21/2020 03:22 PM]

07/22/2020 24

MOTION filed by Ms. Heather S. Meingast for Jocelyn Benson,

25 pg, 210.31 KB Jonathan Brater and Gretchen Whitmer to remand. Certificate of

Service: 07/22/2020. [20-1336] (HSM) [Entered: 07/22/2020 10:52

AM]

07/22/2020 25

RULING LETTER SENT to hold briefing in abeyance pending the

1 pg, 10.2 KB motion to remand. (JEC) [Entered: 07/22/2020 11:24 AM]

07/31/2020 26
6 pg, 1.24 MB

RESPONSE in opposition filed regarding a motion, [24]; previously filed by Ms. Heather S. Meingast for Gretchen Whitmer, Jocelyn Benson and Jonathan Brater. Response from Attorney Mr. Michael S. Cafferty for Appellee Matt Savich. Certificate of Service: 07/31/2020. [20-1336] (MSC) [Entered: 07/31/2020 05:08 PM]

 
 Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f1iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P5a9geP: 1age 1 of 11 (1 of 11)

Deborah S. Hunt Clerk
Ms. Deana Beard 2885 S. Trenton Drive Trenton, MI 48183

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: May 05, 2020

Mr. Michael S. Cafferty 333 W. Fort Street, Suite 1100 Detroit, MI 48226

Mr. Eric Esshaki 1731 Hazel Street Birmingham, MI 48009

Mr. Erik A. Grill Ms. Heather S. Meingast Michigan Department of Attorney General P.O. Box 30736 Lansing, MI 48909

Mr. Gregory J Rohl 41850 W. Eleven Mile Road, Suite 101 Novi, MI 48375-1819

Tel. (513) 564-7000 www.ca6.uscourts.gov

Re: Case No. 20-1336, Eric Esshaki v. Gretchen Whitmer, et al Originating Case No. : 2:20-cv-10831

Dear Counsel and Ms. Beard, The Court issued the enclosed order today in this case.

Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Cathryn Lovely Opinions Deputy

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a0geP: 1age 2 of 11 (2 of 11)

Case No. 20-1336
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERIC ESSHAKI, et al.,

)

Plaintiffs-Appellees,

)

)

MATT SAVICH, et al.,

)

)

Intervening Plaintiffs-Appellees,

)

)

v.

)

)

GRETCHEN WHITMER, Governor of

)

Michigan, et al.,

)

Defendants-Appellants.

)

)

FILED
May 05, 2020 DEBORAH S. HUNT, Clerk
ORDER

Before: BATCHELDER, STRANCH, and BUSH, Circuit Judges. The Panel delivered an order. STRANCH, J. (pp. 5–10), delivered a separate opinion concurring in part and dissenting in part. The nominal defendant in this case, the State of Michigan (hereinafter the “State”), moves to stay a preliminary injunction pending appeal. We GRANT the motion in part and issue stay as to the injunction’s three compulsory directives that re-write the statute, but we DENY the remainder of the motion and uphold the core of the injunction, which enjoins the State from enforcing the statute’s two ballot-access provisions at issue unless the State provides some reasonable accommodation to aggrieved candidates. The plaintiffs are potential political candidates for certain State and National elected offices and, toward that end, were attempting to satisfy Michigan’s statutory requirements to have their names placed on the ballots for the primaries in August. The two statutory requirements at issue (hereinafter the “ballot-access provisions”) are M.C.L. § 168.133, which requires potential primary

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a1geP: 2age 3 of 11 (3 of 11) Case No. 20-1336, Esshaki v. Whitmer
candidates to obtain a certain number of valid signatures by April 21, and § 168.544f, which specifies the number of signatures required for individual races. The plaintiffs assert that the State’s emergency Stay-at-Home Orders, Mich. Exec. Order 2020-21, et al., issued in response to the COVID-19 pandemic, prevented them from collecting the signatures they needed to satisfy the ballot-access provisions during the timeframe between imposition of the first Stay-at-Home Order on March 23 and the April 21 deadline for filing the signatures. Moreover, because the State intended to enforce the ballot-access provisions strictly, without exception for or consideration of the COVID-19 pandemic or the Stay-at-Home Orders, the plaintiffs sued in federal court, claiming that such enforcement, under the present circumstances, is an unconstitutional infringement on their (and voters’) rights to association and political expression, and thus seeking relief from such enforcement. Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020).
In deciding this claim, the district court properly applied the Anderson-Burdick test, Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992), which applies strict scrutiny to a State’s law that severely burdens ballot access and intermediate scrutiny to a law that imposes lesser burdens. The district court correctly determined that the combination of the State’s strict enforcement of the ballot-access provisions and the Stay-at-Home Orders imposed a severe burden on the plaintiffs’ ballot access, so strict scrutiny applied, and even assuming that the State’s interest (i.e., ensuring each candidate has a reasonable amount of support) is compelling, the provisions are not narrowly tailored to the present circumstances. Thus, the State’s strict application of the ballot-access provisions is unconstitutional as applied here.
The district court concluded that “it is appropriate to enjoin [the State] from rigid application of those particular statutes, as well as any others that are substantively identical in causing the same kind of irreparable harm to similarly situated individuals.” Esshaki, 2020 WL 1910154, at *10. Restated another way, the district court’s order enjoined the State from enforcing
2

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a2geP: 3age 4 of 11 (4 of 11) Case No. 20-1336, Esshaki v. Whitmer
the ballot-access provisions at issue unless the State provides some reasonable accommodations to aggrieved candidates. We agree and do not stay the part of the preliminary injunction that prohibits enforcement of the ballot-access provisions of the statute.
But the district court went further and, through a plenary re-writing of the State’s ballotaccess provisions, ordered the State to do three specific things concerning the manner in which it will conduct this ballot access, namely it: (1) reduced the number of signatures required by 50%; (2) extended the deadline for filing the signatures to May 8; and (3) ordered the State to permit the collection of signatures through the use of electronic mail. Esshaki, 2020 WL 1910154, at *10. This compulsory aspect of the preliminary injunction was not justified. Simply put, federal courts have no authority to dictate to the States precisely how they should conduct their elections. See Clingman v. Beaver, 544 U.S. 581, 586 (2005) (“The Constitution grants States broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.” (citations and quotation marks omitted)). This is the States’ constitutionally protected right.
Therefore, we conclude that the State is likely to succeed on the merits and will be irreparably harmed if forced to comply with this re-writing of its ballot-access provisions, that neither the plaintiffs nor others similarly situated will be harmed by staying this portion of the injunction given that the prohibition in the injunction remains, and that the public interest is furthered by protecting the State’s constitutionally guaranteed authority and preventing a federal court from usurping a State’s legislative authority by re-writing its statutes. See A. Philip Randolph Inst. v. Husted, 907 F.3d 913, 917 (6th Cir. 2018) (reciting the standard for staying a preliminary injunction). Therefore, we grant the stay as to this compulsory part of the preliminary injunction.
By staying the compulsory part of the injunction but upholding the prohibitive part, we are instructing the State to select its own adjustments so as to reduce the burden on ballot access,
3

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a3geP: 4age 5 of 11 (5 of 11) Case No. 20-1336, Esshaki v. Whitmer narrow the restrictions to align with its interest, and thereby render the application of the ballotaccess provisions constitutional under the circumstances. We recognize that it was the State that proposed to the district that it could extend the deadline (to May 8) and permit signatures by electronic mail, but the district court apparently found that insufficient to reduce the burden, given that the court also imposed the third requirement (the 50% signature reduction). The court did, however, conclude that its three requirements would together sufficiently reduce the burden and satisfy the Constitution. Thus, the State could adopt the same three-part adjustment that the district court ordered, and we just stayed, because the point is not that the adjustments were right or wrong (or too much or too little), but that the federal court cannot impose such specific manner-of-election requirements on a State without breaching the express delegation of authority in the Constitution. While we need take no position on the efficacy of the district court’s proffered adjustments, that court has already made itself clear on how it sees this, thus giving the State some guidance.
For the reasons stated, we GRANT the motion in part and issue the stay as to the portion of the preliminary injunction compelling the State to adopt the district court’s revisions of the ballot-access provisions, but we DENY the remainder of the motion and uphold the portion of the injunction that enjoins the State from enforcing the statute’s two ballot-access provisions under the present circumstances, unless the State provides some reasonable accommodation to aggrieved candidates.
4

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a4geP: 5age 6 of 11 (6 of 11) Case No. 20-1336, Esshaki v. Whitmer
JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s conclusion that the district court correctly applied the Anderson-Burdick test and acted within its authority to enjoin enforcement of the statute’s two ballot-access provisions in conjunction with the State’s stay-at-home order. My disagreement with the majority stems from its decision to undertake plenary analysis of the lower court’s affirmative injunction. There is a single issue before this court—the State’s motion asks only that we “grant their emergency motion for a stay pending appeal of that portion of the injunction reducing the signature thresholds by 50%.” The State does not challenge the district court’s extension of the filing deadline or allowance of electronic signatures. The majority’s plenary analysis of and rulings on the lower court’s affirmative injunction are not appropriate. And its de novo revision of that order, despite the abuse of discretion standard that governs, conflicts with the Supreme Court’s governing precedent and our own. In addition, the analysis fails to account for the irreparable harm prongs of our review. I therefore respectfully dissent in part.
The long history of federal injunctive relief, including affirmative relief, in comparable situations is uncontestable. Since at least 1908, the Supreme Court has held that Plaintiffs may bring suits against state officials seeking prospective relief to end continuing violations of federal law. See, e.g., Ex Parte Young, 209 U.S. 123 (1908); see also Green v. Mansour, 474 U.S. 64 (1985). A federal court’s ability to redress a plaintiff’s claim is built into the court’s Article III jurisdiction and the requirement that a plaintiff have standing to sue. Marbury v. Madison, 5 U.S. 137, 163, 2 L. Ed. 60 (1803) (“it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy.”); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (explaining that it “must be ‘likely,’ as opposed to merely ‘speculative,’ that the [plaintiff’s] injury will be ‘redressed by a favorable decision.’”).
5

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a5geP: 6age 7 of 11 (7 of 11) Case No. 20-1336, Esshaki v. Whitmer
Specific and practical federal injunctions against state actors have thus been deemed appropriate under circumstances ranging from ballot access and reapportionment cases to school integration and prison reform. See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983) (concluding that absent an injunction ordering a candidate’s name be placed on the ballot, the candidate and his supporters would suffer a constitutional injury from Ohio’s ballot access requirements); Reynolds v. Sims, 377 U.S. 533 (1964) (affirming an injunction requiring Alabama legislators to conduct an election under an apportionment scheme specified in the district court’s order); Milliken v. Bradley, 433 U.S. 267 (1977) (concluding that the district court did not abuse its discretion in ordering a remedial education plan, which adopted specific programs proposed by local school authorities, to redress de jure school segregation); Hutto v. Finney, 437 U.S. 678 (1978) (finding that a district court did not abuse its discretion in compelling a 30-day limit on solitary confinement to remedy a state prison’s ongoing Eighth Amendment violations).
The majority’s determination that the State is likely to succeed on the merits of its appeal is premised on the inaccurate view that lower courts may issue only “prohibitive” rather than “compulsory” injunctions against state officials. To the contrary, Supreme Court jurisprudence has consistently approved of both negative injunctions that instruct a defendant not to act and mandatory injunctions that instruct states to take particular action. See, e.g., Brown v. Plata, 563 U.S. 493, 511 (2011) (reaffirming that if a state government fails to fulfill its obligation to provide prisoners with basic sustenance and adequate medical care, “the courts have a responsibility to remedy the resulting Eighth Amendment violation” through equitable relief and approving a courtmandated reduction in the prison population over a two-year implementation period); see also Brown v. Board of Educ. II, 349 U.S. 294, 300–01 (1955) (holding that the constitutional violation should be remedied with “all deliberate speed,” and with reliance on the “traditional attributes of equity power.”).
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Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a6geP: 7age 8 of 11 (8 of 11) Case No. 20-1336, Esshaki v. Whitmer
The principle that a state has broad power to conduct its elections for both federal and state offices is not in dispute. The assertion that a state’s power to manage elections is absolute even when that authority implicates other constitutional rights, however, is at odds with governing precedent. Although election administration is typically left to state legislatures, the Supreme Court has identified circumstances in which federal courts must intervene to remedy ongoing constitutional violations. For example, where the one-person, one-vote doctrine is implicated or a plaintiff alleges racial gerrymandering, district courts are tasked with drawing up reapportionment plans. Wesberry v. Sanders, 376 U.S. 1 (1964); Shaw v. Reno, 509 U.S. 630 (1993). In reviewing reapportionment interventions, the Court has never concluded that lower courts lack the authority to compel constitutional compliance through affirmative injunctions.
If the Supreme Court believed that a district court could not compel a state to take specific steps to remedy a constitutional voting-rights violation, it would have said so in its recent order addressing Wisconsin’s approach to the primary election during the COVID-19 pandemic. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020). In that case, the Court left in place an extension of the absentee ballot deadline from Tuesday, April 7, 2020 to Monday, April 13, 2020. And, as is true here, the extension in that case was not challenged. The Court did stay certain aspects of the preliminary injunction, based on its long-recognized timing concern that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Id. at 1207. It also took issue with the injunction as overly broad (going beyond what the plaintiffs themselves requested, id.), but it did not suggest that the lower court lacked the authority to craft an appropriate affirmative remedy in accord with the record. We should apply the Supreme Court’s inquiry here by considering whether the evidence supports the challenged signature requirement of the district court’s injunction and whether the order would improperly alter “rules on the eve of an election,” here, a primary election still months away. We should not,
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Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a7geP: 8age 9 of 11 (9 of 11) Case No. 20-1336, Esshaki v. Whitmer
however, stay the district court’s remedy based on the erroneous premise that the court lacked authority to reduce the signature threshold. Id. Likewise, we certainly should not apply this mistaken ground to the other aspects of the court’s order—the filing deadline extension and allowance for electronic signature collection—which are not challenged here.
Following the Supreme Court’s jurisprudence, this court has affirmed the lower courts’ capacity to craft appropriate and specific remedies in ballot-access and voting-rights cases, among other scenarios. See, e.g, Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016) (denying Michigan a stay of a preliminary injunction ordering that it reinstate ballot used in an earlier election because the new ballot was likely to cause voter confusion); Graveline v. Johnson, 747 F. App’x 408, 414 (6th Cir. 2018) (denying Michigan a stay of a preliminary injunction requiring that a candidate’s name be placed on the ballot if certain conditions were met); Nelson v. Miller, 170 F.3d 641, 646 (6th Cir. 1999) (acknowledging that a district court’s remedial power to issue “an affirmative injunction ordering” a state “to offer voting devices assuring full privacy to blind voters would affect the state treasury because it would require Michigan to purchase such devices,” but explaining that “this potential effect” did not trigger Eleventh Amendment immunity). “A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985).
In this context, at issue is whether the district court abused its discretion in granting the preliminary injunction as to the number of signatures required. U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008) (explaining that in determining whether to stay a preliminary injunction we first ask whether the moving part is (1) “likely to be able to show that the district court abused its discretion in granting the preliminary injunction.”). If we apply this standard, I do
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Case 2:20-cv-1C0a8s3e1:-T20G-B13-E3A6S DEoCcFumNoe.n4t:521f-i2led 0F5il/e0d5:/2005/05P/a2g0e2I0D.66P8ageP: a9ge 10 of 1(110 of 11) Case No. 20-1336, Esshaki v. Whitmer
not believe the State Defendants are likely to show an abuse of discretion and succeed on the merits of this appeal. The district court’s approach, moreover, built in protections to prevent abuse of the injunction by ordering that it applies only to those candidates who had filed their statement of candidacy with the FEC or under Michigan law by March 10, 2020. The practical realities of the COVID-19 pandemic and the State’s stay-at-home order both created this unusual issue and serve to limit the district court’s relief, making it unlikely that candidates without a modicum of support would have qualified to appear on the ballot.
The majority’s approach also fails to account for the additional factors we are to consider when deciding whether to stay a preliminary injunction—“(2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). I am especially concerned that modifying the lower court’s injunction with an instruction to the State to select “reasonable accommodations to aggrieved candidates” will fail to redress Plaintiffs’ claims and will lead to significant confusion. For example, the majority’s order grants relief beyond that requested, including reinstatement of the now-past April 21 filing deadline. That action is needlessly confusing and may well trigger candidates who otherwise could have demonstrated a modicum of support to be left off the August ballot. Unless the State chooses to accommodate candidates by extending the now past deadline and reducing the signature threshold, the Plaintiffs and amici will likely be eliminated from the ballot.1 As a result, not only would the candidates’ right to associate
1 The intervening Plaintiffs had not met the statutory signature requirements as of April 21, 2020 and will certainly not appear on the ballot without a deadline extension or other accommodations. So too for judicial candidate Dennis Donahue who submitted a declaration on behalf of the ACLU of Michigan. Although Plaintiff Esshaki timely filed more signatures than required, he “did not have time to properly vet these
9

Case 2:20-cv-C10a8s3e1: -2T0G-1B3-3E6AS DEoCcuFmNeon.t4: 521-f2iled F0i5le/0d5: /0250/05P/2a0g2e0ID.6P6a9geP: 1a0ge 11 of 1(111 of 11) Case No. 20-1336, Esshaki v. Whitmer for the advancement of their political beliefs be harmed, but so would the rights of voters who seek to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). The likelihood that the Plaintiffs and public will be harmed by a partial stay outweighs the chance that the State’s interest in protecting the efficacy of the ballot will be impacted. For these reasons, I respectfully dissent as to the majority’s plenary analysis of and rulings on the lower court’s affirmative injunction. ENTERED BY ORDER OF THE COURT
_____________________________________ Deborah S. Hunt, Clerk
signatures to ensure that they met all the technical requirements.” All candidates will face the difficulty of predicting the “cushion” needed to ensure sufficient valid signatures.
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 Case 2:20-cv-10831-TGB-EAS ECF No. 40 filed 05/07/20 PageID.601 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and his Individual capacity,
Plaintiff,
VS.
GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official Capacities,
Defendants,
and,
DANIEL P. FINLEY,

Case no. 2:20-cv-10831-TGB-EAS

Hon Judge:

Terrence G. Gerg

Hon Magistrate: Elizabeth A. Stafford

AMICUS DANIEL FINLEY’S SUPPLEMANTAL BRIEF: RESPONSE TO STATEMENT OF PROPOSED AMENDMENT By way of supplement to his brief, Daniel Finley (“Finley”), amicus curiae, RESPONSES to Defendant’s statement is as follows:
1. Before the Court is the State’s proposal for a “reasonable accommodation”.
2. The ruling by the 6th Circuit Court of Appeals instructed, “the State to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align

Case 2:20-cv-10831-TGB-EAS ECF No. 40 filed 05/07/20 PageID.602 Page 2 of 5
with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances”. The Court agreed that the State much provide “reasonable accommodations”.
3. Therefore, this Court Ordered submission of “proposed reasonable accommodations”.
4. The State proposes to reduce the signatures by 30% based on its calculation of a “31.7% loss of circulations days”, query why then the State would not propose 68.3%.
Document Continuation Errata – page 5, (ECF Dkt 39, Attachment 1)
5. The State’s proposal is 70% by May 11, 2020 for a candidate otherwise meeting the criteria of the injunction.
6. Amicus expresses these concerns, in paragraphs that follow, to the Court for consideration in determining the reasonableness of the State’s proposal.
7. When Defendant was Ordered on April 20, 2020 to - adopt and promulgate, according to the specifications it determines to be appropriate and efficient, regulations providing for an additional optional procedure that allows the collection and submission of ballot petition signatures in digital form by electronic means such as email;
page 40 of this Court’s April 20, 2020 Order. (ECF Dkt 33) In response, the Secretary of State scanned an 8 ½ by 11 Petition sheet that could only be printed out and signed. There is nothing “digital form” about it. For example, Finley emailed this form to signers who complained that the form could not be opened or required it to be printed and mailed. In other words, unless the signer has a printer, scanner and pdf program it was no good – not everyone has these items in their home.

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8. In any event, Finley was able to collect and submit approximately 725 petition signatures (the majority of which were not by utilizing the new form put out by the SOS) on May 6, 2020. The “e-form” put out by the SOS did not help in any substantive way; however, the extended time most certainly helped.
9. However, because some signatures may be invalid, it is always important for a candidate to have a “cushion” of error. With the 50% signature requirement, Finley had a “reasonable” cushion.
10. Now, however, the State’s proposal would give Finley Mother’s Day weekend, to work on a “reasonable” cushion to account for any invalid signatures.
11. Also, the plain language of the instructions on the Statement of Organization indicate that it may be turned in at the time of the signature Petitions are turned it, to wit: A person becomes a candidate under the Campaign Finance Act on the date he or she: files a nominating petition
Instructions on Statement of Organization, MI form CFR101 CAN SO.doc REV 04/18. 12. However, part of this Court’s injunction and the State’s proposal may prevent Finley from qualifying for the injunction exception because he did not submit a State of Organization by March 10, 2020.
13. Finley did, however, and has proof if the Court so requires, that he formed his committee on March 2, 2020, per the plain language of the Michigan statute.
14. Finley submits that it is always a challenge to determine what is “reasonable” in light of competing agendas.

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15. Nevertheless, Finley requests that the Court consider guiding the State’s proposal toward a “reasonable proposal” with these suggested revisions: a) 65% of the signatures. b) That the State post on their website, per the original injunction, that if a candidate’s committee was formed prior to March 10, 2020 then they qualify for the injunctive relief to the ballot access issue.

16. The Amicus thanks the Court and the Defendants for the opportunity to comment and prays for a “reasonable” solution to the ballot access issue, for the sake of our shared Constitutional values.

Date: May 7, 2020

Respectfully submitted, FINLEY LAW FIRM By: /s/ Daniel P. Finley Daniel P. Finley (P65454) Attorney for and Amicus Curiae 300 N. Main St, Ste 6 Chelsea, MI 48118 Ph. (734) 475-4659; Fx. (734) 475-4672 dpfinleyesq@comcast.net

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CERTIFICATE OF COMPLIANCE I certify that this supplement to brief contains 861 additional words, as indicated by Microsoft

Word. This certificate is made in accordance with Fed. R. Civ. P. 32(g).

Date: May 7, 2020

Respectfully submitted, FINLEY LAW FIRM By: /s/ Daniel P. Finley Daniel P. Finley (P65454) Attorney for and Amicus Curiae 300 N. Main St, Ste 6 Chelsea, MI 48118 Ph. (734) 475-4659; Fx. (734) 475-4672 dpfinleyesq@comcast.net

Case 2:20-cv-10831-TGB-EAS ECF No. 42 filed 05/07/20 PageID.611 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,

No. 2:20-cv-10831 Hon. Terrence G. Berg Mag. Judge Elizabeth A. Stafford

Plaintiff-Intervenors,

v.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. /

AMICUS CURIAE ACLU OF MICHIGAN’S RESPONSE TO DEFENDANTS’ PROPOSED ACCOMMODATIONS

As amicus curiae, the ACLU of Michigan responds to the proposed

accommodations submitted by Defendants yesterday as follows.

First, the proposed accommodations would maintain the component of this

Court’s previous order in which ballot-access requirements are not relaxed unless

the individual formed a candidate committee before March 10, 2020. However, as

illustrated in the attached declaration of Stephanie Witucki, this March 10 cut-off

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date makes no sense for individuals running for office who collect signatures through volunteers. If there have been no campaign expenditures, such individuals do not even become “candidates” within the meaning of the Michigan Campaign Finance Act until they actually file their petitions. Accordingly, it would be improper for them to have formed a candidate committee by March 10. The March 10 requirement imposes a severe burden on the right to association and the requirement is clearly not narrowly tailored to any compelling state interest. See Witucki Declaration (attached as Exhibit A).
Furthermore, the purpose of the March 10 cut-off for forming a candidate committee was to ensure that individuals who were not serious candidates before that date did not suddenly decide to take advantage of the relaxed signature requirement and join a race that they had not previously intended to join. However, that requirement makes no sense when applied to candidates such as Shakira L. Hawkins who had gathered approximately 3000 of her required 4000 signatures by March 10. See Hawkins Declaration (attached as Exhibit B).
Second, Defendants’ proposed accommodation to reduce the number of signatures to 70%—as opposed to the 50% reduction ordered by this Court on April 20—still imposes a severe burden on the rights of individuals running for office and is not narrowly tailored to serve a compelling state interest. As illustrated by the attached Watucki Declaration, raising the number of valid signatures she needs to
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20% more than required by this Court’s April 20 order may well keep her off the

ballot for Genesee County Circuit Court despite the fact that she is a viable candidate

who would have easily qualified for the ballot but for the Governor’s Stay-at-Home

Order.

Accordingly, consistent with the Sixth Circuit order, amicus recommends that

this Court find that the proposed accommodations are unconstitutional.

Respectfully submitted,

/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Civil Rights Litigation Initiative University of Michigan Law School 701 South State Street, Suite 2020 Ann Arbor, MI 48109 (734) 615-2407 mjsteinb@umich.edu

/s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) American Civil Liberties Union Fund
of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6824 dkorobkin@aclumich.org

Attorneys for Amicus Curiae American Civil Liberties Union of Michigan
Dated: May 7, 2020
CERTIFICATE OF SERVICE
I hereby certify that on May 7, 2020, I filed this document using the ECF system, which will send electronic notice of this filing to all counsel of record.
/s/ Daniel S. Korobkin Daniel S. Korobkin (P72842)

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INDEX OF EXHIBITS Exhibit A: Witucki Declaration Exhibit B: Hawkins Declaration

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Exhibit A: Witucki Declaration

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,
Plaintiff,
v

No. 2:20-cv-10831 Hon. Terrence G. Berg Mag. Judge Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. /

DECLARATION OF STEPHANIE A. WITUCKI Pursuant to 28 U.S.C. § 1746, I declare as follows:

Case 2:20-cv-10831-TGB-EAS ECF No. 42-2 filed 05/07/20 PageID.617 Page 3 of 12
1. I am a running for a regular term, non-incumbent position with the 7th Judicial Circuit Court, in Genesee County, in the primary election on August 4, 2020.
2. I have been a member of the State Bar of Michigan since 1996 and meet the statutory and constitutional requirements for this judicial position.
3. I am a resident of Genesee County where I was born and raised and have lived for the majority of my life.
4. The judicial position for which I am running is a position on the family bench.
5. I have vast experience in family law having devoted approximately the last 20 years of my legal career to family law.
6. I have experience in family law in the capacity of a private attorney as well as in a quasi-judicial role.
7. I was a candidate for Genesee County Circuit Court Judge in the 2018 election and easily collected well above the requisite number of signatures.
8. The position for which I am running requires a minimum of 1,000 signatures.
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9. I began collecting signatures on March 10, 2020 when I became aware that a judicial position would be open on the family bench.
10. My plan for collecting signatures included collecting signatures in person from family, friends, neighbors, and acquaintances and canvassing door-todoor throughout Genesee County neighborhoods. I also planned to seek signatures at well-attended functions in my community, including: church gatherings, school functions and sporting events at my children’s schools (elementary, middle and high schools), various union hall meetings, city/county/township meetings throughout Genesee County, various club events, Chamber of Commerce meetings throughout Genesee County, gatherings at restaurants, markets, and various other events scheduled throughout my community. Finally, I planned to circulate my petitions throughout local large and small businesses, including hair and nail salons, manufacturing plants, and restaurants. I would also be relying on the assistance of family and friends who volunteered to help me collect signatures.
11. My plan for collecting signatures for this 2020 election was the same as the plan I used to collect more than enough signatures when I ran in the 2018 election.
12. From March 10, 2020 through March 23, 2020 (13 days), I gathered approximately 467 signatures (almost half of the required 1,000 minimum
3

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signatures) before the state’s first Stay-at-Home Order that took effect on March 24, 2020 at 12:01am.
13. The Stay-at-Home Order caused significant hardship for collecting signatures because all of the large gatherings and events at which I planned on collecting signatures were canceled, church gatherings and all school functions and sporting events were canceled, I was prevented from canvassing door to door, all large meetings that would have typically taken place throughout Genesee County were canceled, public gatherings were prohibited, in-person attendance at church was prohibited, dine-in restaurants were prohibited, and hair and nail salons were forced closed, as were many other large and small businesses.
14. I was hoping to collect more signatures in person after the last Stay-atHome Order expired on April 30, 2020, but the Stay-at-Home Order was then extended through May 15, 2020 after the current deadline for signatures.
15. Mass mailing petitions to collect the requisite number of signatures was cost prohibitive for me.
16. Collecting signatures electronically, when that method became available, was challenging for individuals who either lack proper equipment and/or lack knowledge of technology.
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17. The State’s revised petition can now be emailed to individuals, but they cannot sign electronically.
18. Rather, the voters must print out the petition at home. 19. Many residents of Genesee County do not have printers. 20. Even if they do, they must not only sign the petition, but also (1) sign as a witness, and (2) either scan and email the petition back or take a photo and email it back. 21. Only a small percentage of residents have scanners. 22. Many residents are not skilled at emailing photos on a smartphone. 23. There is a much greater burden and time commitment for electronic signers of petitions than just signing one in person. 24. Despite the extreme difficulties of collecting signatures during a pandemic, I have been able to collect approximately 350 additional signatures since the first Stay-at-Home Order for a total of approximately 817 signatures. 25. I believed that, because of this Court’s order of April 20, I would be able to qualify for the August primary ballot. 26. However, without the 50% reduction of signatures in this Court’s April 20 order that I was relying on, I would not be able to collect both the
5

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requisite number of signatures to qualify for the ballot and have a comfortable cushion.
27. I am quite certain that if I lack a significant cushion above the required number of signatures, an opposing candidate will challenge my signatures.
28. Even with the proposed 30% reduction, I would need 700 valid signatures.
29. I understand that the average signature validity rate is only about 75%, but that it is often much less than 75%. See, e.g., https://ballotpedia.org/Initiative_Petition_Signature_Validity_Rates.
30. Further, I understand that a campaign’s signature goals should be 33% to 100% more than the actual number of signatures needed to ensure that there is an adequate cushion. See, e.g., Successful Citizens’ Initiatives at 21, http://www.greenbelt.org/wp-content/uploads/2012/01/Successful-CitizensInitiatives.pdf.
31. In order to have a satisfactory cushion to ensure that I have 700 valid signatures, I estimate that I would need to submit approximately 1000 signatures.
32. Due to the obstacles caused by the Stay-at-Home Order, I cannot collect 1000 signatures by May 11.
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33. Accordingly, Defendants’ proposed accommodation that would require 70% of the total valid signatures is still a severe burden and may well keep me off the ballot.
34. Additionally, the March 10, 2020 deadline for the filing of the formation of a campaign committee and filing of a Statement of Organization is a severe burden and is unrelated to advancing any interest of the State.
35. Under this Court’s April 20 order, the relaxed signature requirement only apply to candidates for state office who “established a candidate community under the Michigan Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et seq., before March 10, 2020.” Order Granting Prelim. Inj., ECR No. 23, PageID.39.
36. Nothing in Defendants’ proposed accommodations changes this provision of the April 20 Order.
37. Under Defendants’ proposed accommodations, I would not be able to submit my signatures on May 11, 2020 because I did not form my campaign committee and file my Statement of Organization by March 10, 2020.
38. In fact, when I attempted to file my petitions, containing 770 signatures at that time, in Lansing at the Bureau of Elections on the original deadline of April 21, 2020, the Bureau of Elections declined to accept my
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signatures stating that the reason was because I had not filed a Statement of Organization by March 10, 2020.
39. However, there was no legal reason for me to form my campaign committee and file my Statement of Organization until after I filed my signatures.
40. Under Michigan law, I do not have to form a campaign committee until 10 days after I become a candidate, MCL 169.221(1), and I don’t have to file a Statement of Organization with the state until 10 days after forming a campaign committee MCL 169.224(1).
41. According the Michigan Bureau of Elections:
An individual does not legally become a candidate under the Michigan Campaign Finance Act until he or she:
• Files a fee, Affidavit of Incumbency or nomination petition for elective officer; OR
• Is nominated as a candidate for elective office by a political party convention or caucus and certified to the appropriate filing official; OR
• Gives consent to someone else to receive a contribution or make and expenditure in an attempt to be nominated or elected to office.
See Bureau of Elections Publication, https://mertsplus.com/mertsuserguide/index.php?n=MANUALCAN.TheStatement OfOrganizationFormingAndRegisteringACandidateCommittee#candef. (Emphasis in original).
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42. Additionally, Michigan law specifically allows that a candidate may file his or her statement of organization up to 30 days late by simply paying a $10/day late fee. MCL 169.224(1).
43. Within the meaning of the Michigan Campaign Finance Act, I have not become a “candidate” yet because I have not yet filed my petitions and I have not yet expended money on the campaign.
44. My entire signature collecting campaign has been a volunteer effort. 45. Since, legally, I am not yet a candidate, it would not have been proper for me to form a campaign committee or file a Statement of Organization before March 10, 2020. 46. As demonstrated above, I was working diligently to qualify for the August 4 ballot long before this Court’s order of April 21, 2020. 47. I was not a candidate who decided to run just because the change in signature requirement that resulted from this Court’s April 21 order. 48. In fact, but for the pandemic and this state’s stay at home order, I would have easily qualified for the ballot as I did in 2018. 49. However, if I am not able to gain the benefit of this Court’s order or Defendants’ proposed accommodations, I will not qualify for the ballot.
9

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50. Preventing me from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate committee and filing a Statement of Organization creates a severe burden on my right to ballot access and my right to association.
51. Preventing me from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate committee is not narrowly tailored to advancing any state interest. In fact, it is not even rationally related to any state interest.
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Case 2:20-cv-10831-TGB-EAS ECF No. 42-3 filed 05/07/20 PageID.627 Page 1 of 9
Exhibit B: Hawkins Declaration

Case 2:20-cv-10831-TGB-EAS ECF No. 42-3 filed 05/07/20 PageID.628 Page 2 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,

No. 2:20-cv-10831 Hon. Terrence G. Berg Mag. Judge Elizabeth A. Stafford

Plaintiff-Intervenors,

v.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. /

DECLARATION OF SHAKIRA L. HAWKINS

Pursuant to 28 U.S.C. § 1746, I declare as follows:

1. I am a judicial candidate running for one of two non-incumbent, full-

term positions on the Wayne County Circuit Court in the primary election on

August 4, 2020. To my knowledge, both open positions are in the criminal

division.

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2. I am required to gather a minimum of 4,000 signatures, and may submit up to a maximum of 8,000 petition signatures, of qualified and registered voters, in order to be listed on the August 4, 2020 primary election ballot for the Third Circuit Court judicial positions. Mich. Comp. Laws § 169.544f.
3. I am a member in good standing with the State Bar of Michigan, I have been a resident of Wayne County for over 20 years and I am qualified to seek nomination for the office of Judge of the Third Circuit Court. Mich. Comp. Laws § 168.411.
4. I have practiced criminal law for over 10 years. I began my legal career at Legal Aid in the Civil Division in 1999. I then briefly served as executive director of My Sisters Place, a domestic violence shelter for women. I then spent several years away from the practice of law to care for my minor child who had been diagnosed with a developmental disability, which, gratefully, he has overcome.
5. I returned to the practice of law in 2010 and since then have been an active member in good standing working primarily as a court-appointed defense attorney. The vast majority of the cases I handle are criminal case assignments from the Third Circuit Court as a member of the Wayne County Criminal Defense Bar Association. I am passionate about the law and justice and defending the Constitutional rights of the accused.
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6. I have a broad base of community support and was very excited for this opportunity to serve the community as a circuit court judge.
7. I decided early on that I wanted to run for judge in the current election cycle and began gathering signatures in December or January.
8. By March 10, 2020, I had gathered approximately 3000 signatures, give or take a few hundred signatures.
9. Prior to the pandemic, I collected signatures at work and churches. I asked family, friends and co-workers, as well as strangers, to circulate my petitions. My volunteers and I collected signatures during the May 10 presidential primary election by standing outside of polling places. I also stood outside busy businesses with the owner's approval and solicited signatures from patrons.
10. In the initial stages of the pandemic, I stopped collecting signatures. I called the Bureau of Elections at the Secretary of State regularly to see if there would be any accommodations for those seeking access to the ballot. I was told that the matter was being discussed but no decisions had been made and that any changes would be posted on the SOS website. I checked online daily and even called to ask how we were expected to solicit signatures during the pandemic.
11. I was told to try collecting signatures by mail, but I could not afford to gather signatures that way.
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12. Once I realized there would be no accommodations, I renewed my efforts utilizing any free and legal means available to gather signatures. Under the Stay-at-Home Order, individuals were able to go outside for exercise. I would take long daily walks and ask anyone I encountered outside if they would help me get on the ballot. Some collected signatures when using public transportation. One volunteer who lives in an apartment complex asked those passing through the lobby or doing laundry in the community laundry room to sign petitions.
13. Despite our efforts, the Stay-at-Home Order and social distancing rules severely hampered my efforts to gather signatures.
14. Prior to the quarantine, I was on schedule to easily meet my goal of 5000 signatures by the original April 21 deadline, including a comfortable cushion.
15. The filing deadline for me to submit my signed petitions with the Michigan Department of State, Bureau of Elections in Lansing was April 21, 2020 at 4:00 p.m.
16. On April 21, 2020, I filed my nonpartisan nominating petitions bearing approximately 4283 signatures.
17. My name was then placed on the 2020 Michigan candidate unofficial primary ballot where it currently remains.
18. However, on April 29, 2020, I was notified by the Secretary of State that a sworn complaint was filed challenging my candidacy stating that of the
4

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4283 petition signatures I submitted, only 3885 were valid, causing me to fall short of the required minimum by 115 signatures.
19. As of today, I have collected an additional 231 signatures, 70 of which were acquired prior to April 21, 2020, but they were not filed because my volunteer canvassers had difficulty returning them to me before the April 21, 2020 deadline.
20. Under Defendants’ proposed accommodations, I cannot gain the benefit of the relaxed signature requirements, including the provision allowing candidates to submit 70% of the ordinary number of required signatures and the provision that allows candidates to submit additional signatures until May 11.
21. The sole reason I cannot gain the benefit of these relaxed signature requirements is because I did not form my candidate committee before March 10, 2020.
22. Under this Court’s April 20 order, the relaxed signature requirement only apply to candidates for state office who “established a candidate community under the Michigan Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et seq., before March 10, 2020.” Order Granting Prelim. Inj., ECR No. 23, PageID.39.
23. Nothing in Defendants’ proposed accommodations changes this provision of the April 20 Order.
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24. I formed my candidate committee on May 1, 2020, ten days after filing my petition signatures, and I filed my statement of organization, on May 6, 2020, six days after forming my candidate committee.
25. The purpose of including the March 10 cutoff in this Court’s order of April 20 was to ensure that individuals who were not serious candidates did not suddenly decide to take advantage of the relaxed signature requirements and join a race that they had not intended to join before this Court’s order.
26. However, as demonstrated above, I was working diligently to qualify for the August 4 ballot long before this Court’s order of April 21, 2020.
27. I was not a candidate who decided to run just because the change in signature requirement that resulted from this Court’s April 21 order.
28. In fact, but for the pandemic and this state’s Stay-at-Home Order, I would have been able to collect my target of 5000 signatures and would have easily qualified for the ballot.
29. If I am not able to gain the benefit of this Court’s order or Defendants’ proposed accommodations, I will not qualify for the ballot.
30. Preventing me from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate
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committee and filing a Statement of Organization creates a severe burden on my right to ballot access and my right to association.
31. Preventing me from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate committee is not narrowly tailored to advancing any state interest. In fact, it is not even rationally related to any state interest.
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I declare under penalty of perjury that the foregoing is true and correct. Executed on this 7th day of May, 2020, by: /s/Shakira L. Hawkins Shakira L. Hawkins
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Case 2:20-cv-10831-TGB-EAS ECF No. 43 filed 05/07/20 PageID.636 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

Plaintiff,

Case No. 2:20-cv-10831-TGB-EAS

Hon. Terrence G. Berg v.
Mag. Judge Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants,

v.

MATT SAVICH,

Intervenor.

AMICUS CURIAE BRIEF OF THE MICHIGAN REPUBLICAN PARTY

Case 2:20-cv-10831-TGB-EAS ECF No. 43 filed 05/07/20 PageID.637 Page 2 of 18
TABLE OF CONTENTS INDEX OF AUTHORITIES..................................................................................... ii AMICUS CURIAE STATEMENT OF INTEREST .................................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................4 1. Permitting Electronic Signatures on Nominating Petitions Opens the
Door for Fraud .................................................................................................5 2. The Decision of Whether to Allow Electronic Nominating Petitions
Should Not be Made by Executive Fiat...........................................................9 3. Reducing the Signature Requirement Harms Candidates Who Were
Diligent and Adequately Prepared.................................................................10 CONCLUSION AND RECOMMENDED RELIEF ...............................................13
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INDEX OF AUTHORITIES Cases Burdick v. Takushi, 504 U. S. 428, 441-442 (1992) .................................................8 Frank v. Walker, 574 U. S. 929 (2014)......................................................................8 Purcell v. Gonzalez, 549 U. S. 1 (2006) ....................................................................8 Republican National Committee v. Democratic National Committee, 589
U.S. ____, 2 (2020)..........................................................................................8 Veasey v. Perry, 574 U. S. __ (2014) ........................................................................8
Constitution Provisions and Statutes Mich. Const. Art II Section 4(2) ..............................................................................10 Mich. Comp. Laws § 168.133....................................................................................3 Mich. Comp. Laws § 168.544f ..................................................................................3 Mich. Comp. Laws § 168.544c ........................................................................... 3,5,9
State Executive Orders and Administrative Actions Office of Governor Gretchen Whitmer, Exec. Order No. 2020-21 ...........................2 Office of Governor Gretchen Whitmer, Exec. Order No. 2020-41 ...........................9 Bureau of Elections, Michigan Dept. of State, Optional Procedure for
Collection and Submission of Candidate Petition Signatures in Digital Form (Apr. 21, 2020)...................................................................................... 5
Other Authorities and Publications Ariz. Rev. Stat. Ann. § 16-317 (2016).......................................................................7 Joel Achenbach, The Election of 1864 and the Last Temptation of Abraham
Lincoln, THE WASHINGTON POST (Sept. 11, 2014), ........................................8 ii

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Geoffrey Skelley, This Isn’t The First Time American Has Weathered a Crisis in an Election Year, FIVETHIRTYEIGHT (Mar. 23, 2020),.....................8
Kevin Robillard, Four McCotter staffers face charges, POLITICO (Aug 9, 2012) ................................................................................................................6
Jenny Lei Ravelo and Sara Jerving, COVID-19 – a timeline of the coronavirus outbreak, DEVEX (last updated May 5, 2020)...........................12
iii

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AMICUS CURIAE STATEMENT OF INTEREST Amicus Michigan Republican Party (the “Michigan Republican Party,” or “MRP”) is a major political party under Michigan law, and an unincorporated association that actively and extensively participates in campaigns, elections, and public policy debate. A state organization of the Republican Party, MRP exists in large part to foster political debate and the exchange of ideas among its members and the public, and in expressing, promoting, and supporting its members’ political beliefs and ideas with respect to public policy issues. Elections are the cornerstone of the MRP’s activities; consequently, when the laws and rules for gaining access to the ballot are materially changed by executive fiat in the midst of a pandemic and on the eve of Michigan’s primary elections, MRP must act to protect the interest of its candidates and voting members. MRP seeks to ensure that Michigan’s primary ballot maintains integrity by representing candidates that have followed Michigan’s long-established rules to gain ballot access, some of which are designed to ensure a strong candidate as the party’s standard-bearer. MRP is concerned with the accommodations proposed by Defendants on the eve of Michigan’s primary elections, specifically, the use of electronic signatures on nominating petitions, which is a sweeping change to Michigan’s ballot access requirements that was not even requested by Plaintiff.
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The Defendants’ agreement to create from whole cloth, and under severe time constraints, an option for submitting electronic signatures for nominating petitions both opens the door for fraudulent activity in an area as sensitive as the ballot for political office, and also undermines longstanding and well-settled laws passed by both the legislative and executive branches of Michigan’s government. Additionally, and regardless of the merits of implementing an electronic signature option, the law frowns upon sudden changes to election laws, especially in a time of crisis, and therefore any accommodations approved by this Court should be as narrowly tailored as possible to the facts and parties of this case.
The Michigan Republican Party seeks enforcement of Michigan’s longstanding ballot access laws, and objects to the creation and implementation of any system permitting the electronic submission of signatures for nominating petitions. Accordingly, the unique, direct interests and perspective of the Michigan Republican Party as Amicus will assist this Court in its deliberations of this matter.
INTRODUCTION Just yesterday, and in response to the Court of Appeals’ decision to stay, in part, this Court’s preliminary injunction, Defendants were ordered to submit proposed accommodations for the sake of reducing those burdens put on Plaintiff by the confluence of the Governor’s stay-at-home Orders, see Mich. Exec. Order 2020-21, et al., and the duly-enacted laws governing ballot access in Michigan, see
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M.C.L. § 168.133 (requiring potential primary candidates to obtain a certain number of valid signatures by April 21); § 168.544c (requiring that each signature on a nominating petition be signed in the presence of a circulator); and § 168.544f (specifying the number of signatures required for individual races).
In response, Defendants propose awarding the following accommodations: A. That candidates need only submit 70% of the signatures required under § 168.544f; B. That the filing deadline for nominating petitions be further extended from 5:00 p.m. on May 8, 2020, to 5:00 p.m. on Monday, May 11, 2020; and C. That the State permit the collection of signatures through the use of electronic mail.
See Defendants’ Proposed Amendment to April 20, 2020 Order Granting Preliminary Injunction, ECF No. 38 at 4-5 (PageID.594-595).
The Michigan Republican Party believes that no adjustment of the signature threshold in law is necessary, but supports a 70% (or higher) adjustment of signatures if one is going to be made. The Michigan Republican Party further submits that no further extension of the filing deadline for nominating petitions to May 11, 2020 is necessary. Finally, and for the reasons stated below, the Michigan Republican Party strenuously objects to the collection of signatures by electronic mail.
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ARGUMENT First, the proposed accommodations cause substantial harm to the integrity of the ballot by opening the door for fraudulent activity. Second, the proposed accommodations violate separations of powers principals to the extent that the accommodations rewrite statutes that were duly enacted by both the legislative and executive branches of our state government; the executive Defendants cannot, alone, create their own scheme to alleviate the unconstitutional conditions found by that court. Third, the proposed accommodations harm the many candidates in Michigan who met the signature requirements through diligence and forethought. Therefore, and for the reasons further stated below, the Michigan Republican Party respectfully objects to the Defendants’ proposed accommodations to the extent they leave intact a newly created avenue for electronically gathering signatures. The Michigan Republican Party instead submits that extending the deadline to May 8, 2020, alleviated any burdens on Plaintiff, and, if the Court finds it necessary to decrease the signature requirements to 70%, then those two accommodations (i.e., extending the deadline to May 8, and lowering the signature requirement to 70% of the statutory requirement) combine to provide relief greater than necessary to cure any harm evidenced before the Court.
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1. Permitting Electronic Signatures on Nominating Petitions Opens the Door for Fraud
The proposed electronic signature accommodation requires the executive branch of the State of Michigan to create a new law by concocting from whole cloth an electronic option for gathering signatures. The proposed framework for gathering signatures is underdeveloped and opens the door for fraudulent behavior. Indeed, the “new” guidelines for circuiting online nominating petitions, which, even now, are only 2 weeks old, lack the long-standing legal requirement that petition circulators witness all signatures, in-person, see MCL 168.544c, and otherwise allow petition signers to self-certify their own signatures. BUREAU OF ELECTIONS, MICHIGAN DEPT. OF STATE, OPTIONAL PROCEDURE FOR COLLECTION AND SUBMISSION OF CANDIDATE PETITION SIGNATURES IN DIGITAL FORM (Apr. 21, 2020). Combine the lack of such longstanding safeguards with the fact the information required to sign a nominating petition—an individual’s name and address—is easily obtainable through a simple Google search, and any bad actor could easily devise a scheme to falsify and forge ballot petition signatures under the electronic signature framework proposed by the Defendants’ accommodations.
To be clear, the Michigan Republican Party’s concerns are reasonable and based in reality. Not even a decade ago, several political staffers in Michigan were involved in a fraudulent signature scheme in which they photocopied signatures from nominating petitions used in prior election cycles for the sake of meeting the
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same exact statutory provisions that, ironically, Plaintiff and Defendants alike seek

to relax in this case. See Kevin Robillard, Four McCotter staffers face charges,

POLITICO

(Aug

9,

2012)

available

at

https://www.politico.com/story/2012/08/report-charges-in-mccotter-case-079509.

Even with the so-called “safeguards” in place under the Defendants’ electronic

signature scheme—such as comparing the signature on a petition against the

corresponding signature in a voter’s file—a candidate could pull off the same

scheme as that which took place back in 2012, and get away with it. The Michigan

Republican Party is right to be concerned about the many opportunities for fraud

under the Defendants’ unproven and unvetted electronic signature system, and the

parties in this case should be concerned about that, too.

Setting aside the potential for fraud, evidence from other states indicates that

electronic signature submission mechanisms take years to implement. Indeed,

while Michigan was ordered, and now voluntarily offers, to implement an

electronic signature system at the drop of a hat, other states that have been

attempting to implement electronic signatures for years continue to face significant

difficulties with their electronic signature systems, even in normal times. For

example, Arizona created its electronic signature system, E-Qual, four years ago,

and has yet to fully implement the system for municipal, county, and precinct

candidates, even though it was required to do so when the system was established.

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See ARIZ. REV. STAT. ANN. § 16-317 (2016). If states are unable to fully implement a comprehensive, fully functional system in four years during normal times, it is inconceivable that a state could create and effectively implement such a system during a national crisis and on such a short time frame.
It is also difficult to square that a mail-only signature campaign was met with such skepticism as compared to an electronic signature system. Through the course of these proceedings, for example, a mail-based signature campaign was characterized as “unproven and questionable at best.” Order Granting Motion for Preliminary Injunction, ECF No. 23 at 19, (PageID.339). But if using the United States Postal Service to circulate nominating petitions is unproven and questionable, it is pure folly to instantly implement an underdeveloped and unproven internet method for the same purpose. Even Plaintiff noted that an electronic-signature system is “untested, complicated, and unlikely to yield results.” Id. at 20. The Michigan Republican Party agrees, and further submits that it is just plain dangerous.
Implementation of an electronic-signature system in the midst of a pandemic and on the eve of an election thrusts uncertainty into the electoral process. Any change in election laws, especially during a time of crisis, sets dangerous precedent for future events. Everyone’s lives have been impacted by the COVID-19 pandemic, some in more ways than others. That does not, however, mean that
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generally-applicable laws should be overturned, especially election-related laws. As the Supreme Court has recently stated, “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican National Committee v. Democratic National Committee, 589 U.S. ____, 2 (2020) (citing Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014)).
It is especially imprudent to rewrite election laws during a time of crisis. Emergencies are precisely when critically important constitutional and statutory rules that are “structured to maintain the integrity of the democratic system” should be most strictly adhered to. Burdick v. Takushi, 504 U. S. 428, 441-442 (1992). Even in the darkest moments of American history, such as the Civil War and the 1918 Spanish Flu outbreak, election laws remained unchanged. See Joel Achenbach, The Election of 1864 and the Last Temptation of Abraham Lincoln, THE WASHINGTON POST (Sept. 11, 2014) available at https://www.washingtonpost.com/national/health-science/the-election-of-1864and-the-last-temptation-of-abraham-lincoln/2014/09/11/e33f99aa-345b-11e4-9e920899b306bbea_story.html; Geoffrey Skelley, This Isn’t The First Time American Has Weathered a Crisis in an Election Year, FIVETHIRTYEIGHT (Mar. 23, 2020), available at https://fivethirtyeight.com/features/this-isnt-the-first-time-americahas-weathered-a-crisis-in-an-election-year/. This instance is no different, and it
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would be unwise to set a precedent that otherwise constitutional rules governing elections can be dispensed with in times of emergency, and replaced with an underdeveloped and unproven scheme such as the electronic signature system being implemented by Defendants.
2. The Decision of Whether to Allow Electronic Nominating Petitions Should Not be Made by Executive Fiat.
By proposing that Michigan accept electronic signatures on ballot petitions, Defendants attempt to replace long-standing statutes and rules regulating ballot access in the State of Michigan. Specifically, the proposed scheme for accepting electronic signatures on nominating petitions amounts to a unilateral rewrite of Michigan’s ballot access laws, which otherwise require that each signature on a nominating petition be signed in the presence of a circulator. See M.C.L. § 168.544c. See also Nominating Petition under new Electronic Signature Scheme, (permitting circulators to witness signatures remotely under Executive Order 202041).
While the supplanted statute was the product of the political process—that is, it was enacted by the legislature and executive together, and in accordance with the Michigan Constitution—the Defendants’ new electronic signature scheme originates from the Defendants alone, all whom are members of the executive branch, and with no input whatsoever from the legislature. A unilateral rewrite of ballot access laws through the guise of accommodations in a federal lawsuit is not
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only inconsistent with the separation of powers as set forth in Michigan’s Constitution, see Mich. Const. Art. II Section 4(2) (“[T]he legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, [and] to guard against abuses of the elective franchise”), but also completely unnecessary given that the accommodations in questions were not even requested by Plaintiff.
3. Reducing the Signature Requirement Harms Candidates Who Were Diligent and Adequately Prepared.
The Michigan Republican Party further objects to any accommodation that reduces the number of signatures required to gain access to the ballot, and believes that any reduction should be as minimal as possible. The signature threshold for ballot access has been long-established, and the vast majority of qualified candidates across Michigan diligently expended resources and collected necessary signatures well in advance of the April deadline. Of note, all fourteen congressional districts and the US Senate candidate had at least one Republican candidate that turned in more than the statutory required signature amount with no need for reduction. Reducing the number of signatures needed to gain access to the ballot is contrary to the plain language of Michigan law, and contrary to the intent of the threshold requirement, which is designed to ensure strong candidates as the party’s standard-bearer.
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There is no doubt that the outbreak of COVID-19 detrimentally impacted political campaigns across the country, including those in the State of Michigan. That has not, however, precluded candidates from gaining access to the ballot— including in the case of Plaintiff, who appears to have surpassed the non-adjusted legal signature requirement well in advance of May 8th. To that end, dozens of Congressional candidates in Michigan had no problem obtaining the signatures required to secure access to the ballot, including at least three candidates for the 11th District, the same District in which Plaintiff is running. See State of Michigan’s Response to Plaintiff’s Motion for TRO/Preliminary Injunction, ECF No. 6 at 5 (PageID.103). Modifying the ballot access requirements due to COVID19 is unfair to the many candidates within the State of Michigan who followed the rules, built support, and expended resources in advance of the legal deadline in a diligent manner.
Further, every candidate was aware of the likelihood that COVID-19 would arrive in the United States, as the federal government was warning individuals to prepare for an outbreak long before any confirmed cases occurred.1 Importantly,
1 For example, on February 25, 2020, the Center for Disease Control (CDC) warned about the likely spread of COVID-19 in the United States, and told citizens to “prepare for the expectation that this might be bad.” Dr. Nancy Messonnier, director at the National Center for Immunization and Respiratory Diseases, cautioned during a press briefing: “It’s not so much of a question of if this will happen anymore but rather more of a question of exactly when this will happen.”
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the Governor’s stay-at-home orders that precluded candidates from interacting with individuals to collect signatures was issued mid-March, well after Plaintiff, and most other candidates, decided to run for office. The Governor’s stay-at-home order is not the reason why candidates cannot gain access to the ballot; rather, any candidate that fails to secure ballot access due to a lack of signatures met that fate by lack of diligence and forethought, or just by plain not having public support.
Any change to the ballot access laws that reduces the legal signature requirement rewards candidates that did not prepare properly for potential setbacks. That being said, allowing ballot access with only 70% of the otherwise required signatures is better than a 50% reduction. As this Court acknowledged, the State has an important interest in preventing ballot overcrowding and voter confusion, see Order Granting Motion for Preliminary Injunction, ECF No. 23 at 23 (PageID.343), and any accommodation should be as close as possible to the existing law that diligent candidates relied upon when they expended resources to obtain signatures in January, February, and March. Allowing individual candidates to access the ballot with only 70% (or worse yet 50%) of the otherwise required signatures, and/or by gathering signatures electronically, would permit candidates to gain access to the ballot who otherwise would have had difficulty meeting the statutory requirements in the first place.
Jenny Lei Ravelo and Sara Jerving, COVID-19 — a timeline of the coronavirus outbreak, DEVEX (last updated May 5, 2020).
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CONCLUSION AND RECOMMENDED RELIEF For the foregoing reasons, the Michigan Republican Party respectfully objects to the Defendants’ proposed accommodations to the extent they leave intact an avenue for electronically gathering signatures. Rather, the Michigan Republican Party submits that extending the deadline to May 8, 2020, alleviated any burdens on Plaintiff. If, however, that deadline extension was not enough of an accommodation, then a minimal decrease of the signature requirement is most appropriate.
Respectfully submitted,

Dated: May 7, 2020

By: /s/ Robert L. Avers Charles S. Spies (P83260) Robert L. Avers (P75396) Dickinson Wright PLLC Attorney for Michigan Republican Party 350 S. Main Street, Suite 300 Ann Arbor, MI 48104 (734) 623-1672 ravers@dickinsonwright.com

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CERTIFICATE OF SERVICE I hereby certify that on May 7, 2020, I filed the foregoing was electronically filed with the Clerk of the Court using the ECF System; which will send notification to all counsel of record by CM/ECF.
/s/ Robert L. Avers Robert L. Avers Dated: May 7, 2020
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 Case 2:20-cv-10831-TGB-EAS ECF No. 44 filed 05/07/20 PageID.654 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

ERIC ESSHAKI, as candidate for United States Congress and in his Individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for The Third Circuit Court Judge, Regular Term, Non-Incumbent Position in Wayne County and in her individual capacity.

Case No. 2:20-CV-10831-TGB Hon. Terrence G. Berg

Plaintiffs, v. GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, And JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants, joint and severable. PLAINTIFF’S RESPONSE TO DEFENDANTS PROPOSED ORDER
NOW COMES, Deana Beard, for her response states as follows: Ms. Beard will not address the timeline of events, as she believes this does not aid in the process. However, she does appreciate this is a time sensitive issue. The Court of Appeals for the Sixth Circuit (hereinafter COA) indicated and confirmed this court’s conclusion that the State (hereinafter Defendants) did violate the Plaintiff’s Constitutional rights with strict compliance of the statutes during this time, creating a severe burden for the Plaintiff’s. It also asserted that the Defendants have Constitutional rights. The COA indicated that this court applied the balancing of interests among the parties correctly. The
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COA states that while they will not say the 50% reduction is right or wrong, the Defendant’s should use it as some guidance. The COA did not say was the court based on the facts was wrong for concluding a 50% reduction, in fact, the court had reasons to do so, easing the severe burden placed on Plaintiffs. Ms. Beard (right or wrong) disagrees with the COA conclusion that a 50% reduction is re-writing the statute and extension of the deadline/e-signatures is not. Court’s have the right to fashion remedies.
The Defendants, to date, still imply they did not violate any Constitutional rights (“State Defendants continue to believe that no reduction is warranted…”). It does not get any more serious than violation of Constitutional rights (other than death). Typically, in civil cases when a constitutional right is violated, there is monetary gain. Ms. Beard takes her constitutional rights seriously as an individual voter and as a candidate. Clearly, the COA and this court also take it seriously. Ms. Beard does question whether this is a reasonable remedy.
Please keep in mind, the Plaintiff’s have had less than 24 hours to decide if this proposed remedy addresses the Constitutional violations by agreeing to the reduction. Ms. Beard appreciates the Defendants efforts to provide remedy but does not want this to tantamount to the 600lb gorilla (Defendants) telling them (Plaintiffs) this is the remedy without further information. Please keep in mind the COA indicated there must be a reasonable remedy.
The Defendants proposed a 30% reduction and extension of deadline by 3 days. The Defendants have indicated they did the math on the percentage of days missed. This is a good start. The math did not take in account that judicial candidates actually did not have that same time frame as discussed previously (using Defendants math judicial candidates had 108 less, not 53). The Defendants did not take in consideration of large events or weather as factors, which are actual proven factors when getting signatures. This was simply a math problem to them and not a
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serious constitutional violation. Ms. Beard does appreciate there needs to be a global application. She also appreciates that it may be impossible to make her whole (i.e. give her a reduction that would have guaranteed on the ballot, which she would have had but for the events before us today). Ms. Beard also relies on all previous arguments made (written or oral) and detrimentally relied on the 50% reduction.
Ms. Beard in the interim of the order and the COA, took steps to address all remedies and detrimentally relied on the order. As Defendants counsel suggested “just start a Facebook campaign”. Ms. Beard did so. To date, not one signature. People did contact her to indicating a show of support but were not willing to sign because it is “just too complicated to do”. Ms. Beard fully anticipates the Defendants indicating this shows she is not popular enough. Ms. Beard would remind this court and the Defendants that she obtained 3557 signatures in 50 days. In two weeks, Ms. Beard following the Executive Order did not obtain another signature, 3 more days will not rectify the same position we are currently in. However, she is not opposed to others having the time to do so.
Ms. Beard will not violate an Executive Order to obtain signatures. This is counterproductive to run for a position (judge) to uphold the law and then violate the law to get the position. This would put Ms. Beard’s integrity at issue. Not to mention having to answer to the State Bar of Michigan and the State for criminal charges.
Ms. Beard, in honesty, is struggling with the competing interests. On one hand, global application is going to the how this is handled. On the other, her own personal interests as a candidate that but for the circumstances would have been on the ballot. Now, frankly, it is a serious maybe. Additionally, Ms. Beard does not, nor do the others, want to be in litigation limbo.
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The Defendants can inform the Plaintiffs of exactly where they stand today, i.e. the number of certified signatures. This would ease the burden of deciding this issue. This would provide the Plaintiffs with the ability to make an informed decision. The Defendants have had 17 days to get an answer to this question, which would ease the burden and allow Plaintiffs to make an informed decision. It should be noted that the 3 parties to this case have less than 6000 signatures to certify. This situation before the court equates to a divorce where the parties are attempting to divide retirement benefits. One party has the answer regarding the actual amount in the account and proposes a solution (take this amount without the benefit of the total, you will be happy). While the other party is left guessing/speculating whether this remedy is appropriate. If the party agrees to that remedy and their guess/speculation is wrong, then they are left with the final order for that issue. Thus, it is hard to make an informed decision without all the facts to consider.
Ms. Beard anticipates that Defendants will argue that providing them with the number of certified signatures gives them an edge over other candidates who do not know at this time. Ms. Beard vehemently disagrees. Other candidates still have the ability have the reduction and submit more signatures if they can get them. Let us not forget that those individuals could have sued, joined this case, and had input into the remedy for their rights being violated. They chose not to. Ultimately, they will reap the benefits of this lawsuit without being a party, i.e. reduction and extension.
WHEREFORE, Ms. Beard, requests that the Defendants inform the parties were they actually are at (certified signatures) thus allowing them to make an informed decision.
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In conjunction with and/or in the alternative, Ms. Beard requests this Honorable Court, provide relief requested in her original complaint. Attorney fees, costs, and any relief this court deems, necessary, reasonable, just, and proper.

Respectfully submitted,

Dated: May 7, 2020

/s/______________________ Deana Beard 2885 S Trenton Dr. Trenton, MI 48183 (734) 502-7411 dbeard916@yahoo.com

Please note and accept Ms. Beard’s apology, her scan broke. She submits this without actually signing this but hopes because of the time sensitive nature the court accepts this as if it is signed, she will file a signed copy with the court via. mail.

Certificate of Service
I hereby certify that on May 7, 2020, I electronically filed the documents with the Clerk of Courts using ECF system/email, which will provide electronic copies to counsel of record.

Dated: May 7, 2020

Respectfully submitted,
/s/_____________________ Deana Beard 2885 S Trenton Dr. Trenton, MI 48183 (734) 502-7411 dbeard916@yahoo.com

Please note and accept Ms. Beard’s apology, her scan broke. She submits this without actually signing this but hopes because of the time sensitive nature the court accepts this as if it is signed, she will file a signed copy with the court via. mail.

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 Case 2:20-cv-10831-TGB-EAS ECF No. 47 filed 05/11/20 PageID.672 Page 1 of 34

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,
Plaintiff-Intervenors,
v.
GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

INTERVENING-PLAINTIFF SHAKIRA L. HAWKINS’S EMERGENCY MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24(a) and 24(b), Intervening Plaintiff Shakira L. Hawkins hereby moves the Court to grant her request to intervene in this case. Counsel for Plaintiff Esshaki, for Plaintiff-Intervenor Matt Savich and for amici ACLU of Michigan, Daniel Finley and Whittney Williams concur in the relief sought.

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In accordance with LR 7.1(a)(2)(A), counsel conferred by phone with

Plaintiff-Intervenor Deana Beard, Esq. and by email with counsel for the State

Defendants, but both declined to concur.

With respect to amicus Michigan Republican Party, counsel conducted

reasonable efforts under the emergency circumstances but was not able to obtain

concurrence in this motion. See LR 7.1(a)(2)(B). The moving party did not know

that intervention would be necessary until Friday, May 8, 2020, when the Defendants

published unreasonable accommodations relating to their unconstitutional

application of state election laws. She promptly engaged counsel on Sunday, May

10, 2020. Due to the emergency nature of the relief, counsel must file this motion on

Monday, May 11, 2020 to avoid prejudicing the intervenor’s rights. On Monday,

May 11, 2020, undersigned counsel contacted counsel for the amicus via his phone

and email identified on the docket, but a response has not yet been received.

In support of this motion, the movant relies upon the attached Brief and

proposed Complaint in Intervention.

Respectfully Submitted,

May 11, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,
Plaintiff-Intervenors,
v.
GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

BRIEF IN SUPPORT OF INTERVENING-PLAINTIFF SHAKIRA L. HAWKINS’S
EMERGENCY MOTION TO INTERVENE

Case 2:20-cv-10831-TGB-EAS ECF No. 47 filed 05/11/20 PageID.675 Page 4 of 34
STATEMENT OF ISSUES PRESENTED 1. Whether the Court must grant Hawkins’s request to intervene under Fed. R.
Civ. P. 24(a) because she has promptly and timely filed this Motion; she personally has substantial constitutional rights to ballot access which the Parties are litigating here; none of the Parties share her same interest in challenging a particular State election requirement/accommodation that imposes an arbitrary deadline for creating a campaign finance committee; and as a result the Parties might not protect (and are not protecting) her legal interests.
2. Whether the Court should exercise its discretion to allow Hawkins to intervene under Fed. R. Civ. P. 24(b) because she has promptly and timely filed this Motion; she has a claim or defense that shares with the main action a common question of law or fact; and her intervention will not unduly delay or prejudice the adjudication of the original parties’ rights.
CONTROLLING OR MOST APPROPRIATE AUTHORITIES The issues in this Motion are governed by Federal Rule of Civil Procedure 24(a),(b), as most helpfully interpreted by Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).
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The movant, Shakira Lynn Hawkins, respectfully submits this brief in support of her motion to intervene. Hawkins is a judicial candidate and a voter with direct interests in this important constitutional case. Under the facts alleged in her proposed Complaint (Exh. A: Compl. in Intervention), Federal Rule of Civil Procedure 24(a) grants her a right to intervene. Alternatively, she presents compelling reasons for the Court to permit intervention under Rule 24(b). For the reasons below, Hawkins respectfully asks the Court to grant her request.
BACKGROUND This case is relatively new. Less than six weeks ago, on March 31, 2020, U.S. Congressional candidate Eric Esshaki filed the two-count Complaint that initiated this election-rights case. (Compl., ECF No. 1, PageID.1.) In his capacity as a candidate, Esshaki challenged the infringement of his right to have his name on the ballot. (Id. PageID.11.) In his capacity as a voter, he challenged the infringement of his ability to vote for the candidate of his choice. (Id. PageID.12.) In both counts, he relied upon the First and Fourteenth Amendments, which preserve fundamental political, associational and voting rights to ballot access. Since then, two judicial candidates who also face similar impediments and infringements – Matt Savich and Deana Beard – successfully intervened as of April 20, 2020. (Order, ECF No. 22, PageID.318.)
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While their political interests might differ, Esshaki and Hawkins share a number of common legal interests along with Savich and Beard. They are each active candidates for office in Michigan’s 2020 elections. (E.g., PageID.2; Exh. A ¶ 3.) They were each impacted by the unusual national and statewide emergencies that COVID-19 caused, as well as by the substantial restrictions that the related gubernatorial Executive Orders imposed on their respective campaigns. (E.g., PageID.3, 7-8; Exh. A at 6-10.) Despite headwinds, they each gathered a significant showing of public support for their campaigns. And absent the emergency and the resulting Stay-At-Home Orders, both could be expected to comfortably surpass Michigan’s ordinary signature requirements. (E.g., PageID.6; Exh. A at 9-10.) Yet as a result of the Executive Orders, they each face disqualification by relatively arbitrary deadlines and quantitative election-law requirements, which might suit ordinary times but are unsupportable during the current emergency.
Hawkins differs from Esshaki, however, in two key respects; namely, she presents an even more meritorious claim to the ballot while facing an additional technicality. Whereas Esshaki had “nearly seven hundred” of the 1000 signatures otherwise required for his candidacy, (PageID.6, ¶ 22), Hawkins already gathered 4283 signatures – more than the 4000 usually required to secure a place on the ballot. (Exh. A ¶¶ 13-14, 30.) On April 29, 2020, and after the usual time for filing signatures elapsed, however, Hawkins learned that an opposing candidate
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challenged 398 signatures, now leaving her 115 signatures short (that is, less than 3% shy). (Id. ¶ 33.)
That 3% shortfall could have found an easy solution through this Court’s April 20, 2020 Preliminary Injunction Order and the State’s resulting accommodations, were it not for one key distinction. (See generally ECF No. 23, PageID.321.) Unlike Esshaki, Hawkins did not engage in early fundraising efforts. Instead, she worked to achieve substantial direct public support through a signature-gathering campaign rather than through campaign contributions. As a result, she did not form a campaign committee until May 1, which like many candidates was within ten days after she filed her nominating petitions on April 21. (Exh. A ¶¶ 18, 34.)
As affirmed by the Sixth Circuit, this Court has already determined that the State’s jointly imposed requirements violate the Constitution as applied during these unusual and difficult times. The State’s accommodations to remedy the unconstitutional burden, however, currently include an arbitrary campaign-finance committee creation deadline of March 10, 2020 (“Arbitrary Finance Committee Deadline”) Although Hawkins obviously has more than a modicum of support, she is being denied the benefit of the State’s relaxed signature requirement and its relaxed signature-filing deadline because she had not formed her campaign committee by the Arbitrary Finance Committee Deadline. (Exh. A at 9-12.) Now,
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the deadline threatens to keep Ms. Hawkins off the ballot and deprives her supporters from being able to vote for their desired candidate.
The March 10 cutoff has already been discussed and addressed in this case. When the Sixth Circuit remanded the matter, this Court ordered the State to submit proposed accommodations and gave plaintiffs and the amici an opportunity to respond. Two amici raised the issue of the March 10 deadline and, in support, the ACLU of Michigan submitted two declarations, including Ms. Hawkins’ declaration. Although this Court did not believe it had the power to institute a remedy in light of the Sixth Circuit’s opinion, the Court made it clear that it believed the March 10 cutoff was constitutionally problematic and urged the State to take that into account when issuing new accommodations.
When the Secretary of State issued new accommodations on its website on May 8, it ignored this Court’s admonition and refused to alter the March 10 cutoff. As a result, Ms. Hawkins cannot currently benefit from the 50% reduction in signatures and could not benefit from the extension of the signature-filing deadline until last Friday (May 8). She will not be on the August 4 ballot absent this Court’s intervention.
Neither Mr. Esshaki nor the other intervening plaintiffs are impacted by the March 10 cutoff and will not be seeking relief from this portion of the State’s new
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rules. Accordingly, as argued below, Ms. Hawkins, is entitled to intervention as of right. Alternatively, she seeks leave to intervene.
ARGUMENT Ms. Hawkins seeks to intervene to assert her fundamental rights to ballot access under the First and Fourteenth Amendments, which will probably be impeded if her request is denied. The Court has amply described the nature of those rights in its recent April 20, 2020 Order. (ECF No. 23, PageID.330-333.) Matters relating to the election are moving quickly, this Court is experienced with the facts and issues, and Hawkins will lose valuable time during which her rights will be impeded if she is forced to start afresh. For the following reasons, Hawkins respectfully asks the Court to grant her request to intervene. I. APPLICABLE STANDARDS. This Court is familiar with the standards that govern motions to intervene. See, e.g., Baker v. Iron Wkrs.’ Local 25 Vacation Pay Fund, E.D. Mich. Case No. 19-12963, 2020 U.S. Dist. LEXIS 27324, at *4 (E.D. Mich. Feb. 18, 2020) (Berg, J.) (granting intervention). Under Federal Rule of Civil Procedure 24, intervention can be mandatory or permissive. The Court “must permit” Hawkins to intervene as long as the motion is “timely” and the parties do not adequately represent her interests, because she “claims an interest relating to the . . . transaction[s involved in this case], and . . .
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disposing of the action [without her] may as a practical matter impair or impede [her] ability to protect [her] interest.” Fed. R. Civ. P. 24(a)(2). Alternatively, the Court has discretion to allow Hawkins to intervene because she “has a claim or defense that shares with the main action a common question of law or fact,” and her intervention will not “unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(1)(B),(3).
In deciding the motion, “the court will accept as true all well-pleaded, nonconclusory allegations in the motion to intervene, in the proposed complaint or answer in intervention, and in declarations supporting the motion . . . .” 6 James Wm. Moore, Moore's Federal Practice, § 24.03[1][a] (3d ed. 2005); see also Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995); Horrigan v. Thompson, No. 96-4138, 145 F.3d 1331 at *2 [published in full-text format at 1998 U.S. App. LEXIS 9506] (6th Cir. 1998) (Table) (quoting Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256, 1258 (7th Cir. 1983)).
II. THE APPLICANT IS ENTITLED TO INTERVENE AS OF RIGHT UNDER RULE 24(a)(2).
Under the Sixth Circuit’s analysis of Rule 24, Hawkins has a right to intervene because: (1) her application is timely; (2) she has a “substantial legal interest in the case”; (3) her “ability to protect that interest [is impaired] in the absence of intervention”; and (4) the current parties do not adequately represent her interests.
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Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). The motion must be granted.
A. The Applicant’s Motion is Timely. Although standards of timeliness are flexible,1 there is no question that a motion filed within weeks of the Complaint and during the early stages of the litigation is timely. Miller, 103 F.3d at 1245. Here, Hawkins filed her application in the early weeks of this fast-moving case and at the first practicable time when it became clear both that the Court’s rulings impact her access to the ballot and that the current parties are not in a position to adequately protect her interests. Hawkins had been involved in this case through amicus ACLU of Michigan and did not think intervening would be necessary when this Court admonished the State to change the March 10 Arbitrary Finance Committee Deadline. However, when the State ignored that admonition last Friday, Hawkins filed her motion to intervene the next business day. Her application is timely for both mandatory and permissive intervention (below).
1 Courts “evaluate timeliness in the context of all relevant circumstances and consider the following five factors” in determining whether a motion to intervene is timely: (1) the stage of the litigation; (2) the purpose for which intervention is sought; (3) the length of time preceding the motion during which the potential intervenors knew or should have known of their interest in the litigation; (4) the prejudice to the original parties due to the potential intervenors’ failure to promptly move to intervene; and (5) the existence of unique circumstances militating against or in favor of intervention. Kirsch v. Dean, 733 Fed. App’x 268, 274-75 (6th Cir. 2018).
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B. The Applicant Has a Substantial Legal Interest in the Case. When identifying the movant’s legal interest, the term “‘interest’ is to be construed liberally.” Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); see Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999) (court “subscribe[s] to a ‘rather expansive notion of the interest sufficient to invoke intervention of right.’”) (quoting Miller, 103 F.3d at 1245). Although every movant’s request is fact-specific, Hawkins’s hurdle is low She does not need to demonstrate any “specific legal or equitable interest,” Purnell v. Akron, 925 F.2d 941, 948 (6th Cir. 1991) (citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 132-36, 87 S. Ct. 932, (1967)), and she need not even show standing to initiate a separate lawsuit. Miller, 103 F.3d at 1245 (discussing Purnell, 925 F.2d at 948, in turn citing Trbovich v. United Mine Wkrs., 404 U.S. 528, 536-39, 92 S. Ct. 630 (1972)). Here, Hawkins is a candidate for state judicial office who is being deprived of the same First and Fourteenth Amendment rights that the Court described at PageID.30-33. She not only has the same standing as the other Plaintiffs to initiate a lawsuit, but also, as this Court apparently suggested at oral argument on Thursday, she is likely to prevail. In addition, she also has a substantial likelihood of prevailing on issues that are not now adequately represented. While the Governor’s Stay-At Home Orders and the State’s ordinary election laws jointly hamstrung Hawkins’s ability to timely
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and comfortably surpass the minimum filing requirements, a unique burden now treats her differently than the other similarly situated parties. The State insists upon imposing and enforcing the Arbitrary Finance Committee Deadline. Unlike other candidates, Hawkins’s wholly grassroots campaign did not need to rely on fundraising, and the formation of a campaign finance committee under Mich. Comp. L. § 169.221(1) was not previously required to qualify for her to access to the ballot. The irony of the State’s enforcement scheme is that Hawkins – through sheer grassroots organization – had enough signatures by the ordinary deadline, still would have had enough additional signatures if late-filing were allowed (Exh. A ¶ 36), and obviously has enough signatures under a relaxed quota. She is a preexisting and serious candidate with substantial voter support. Yet unlike the other parties, she is the one who will otherwise be excluded from the ballot because of the Arbitrary Finance Committee Deadline.
Where, as here, an intervenor’s rights could be affected by the litigation, Hawkins has amply satisfied this factor. Compare Usery v. Brandel, 87 F.R.D. 670, 676 (W.D. Mich. 1980) (“It is well-established that an applicant has ‘a significant protectable interest’ in rights which may be affected by interpretation in a pending case . . . .”); Grutter, 188 F.3d at 399-400 (finding that prospective minority applicants to the University of Michigan had a “direct, substantial, and compelling” legal interest to support intervention as of right where the proposed intervenors’ chances of gaining admission could be impacted by plaintiffs’ lawsuit).
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C. The Applicant’s Ability to Protect Her Interests Will be Impaired Absent Intervention.
The Court’s inquiry into the degree of potential impairment absent intervention is also lenient. To be entitled to intervene, Ms. Hawkins need not face “substantial” or inevitable impairment of her interests. Purnell, 925 F.2d at 948. Instead, she “must show only that impairment . . . is possible if intervention is denied.” Miller, 103 F.3d at 1247 (citation omitted). Her “burden is minimal,” id., and “is not an onerous task.” Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by any Means Necessary v. Granholm, 240 F.R.D. 368, 375 (E.D. Mich. 2006).
Here, without an alteration of the State’s proposed accommodations, Hawkins almost certainly will be denied access to the ballot. That near-certainty far exceeds the lenient potential impact that Rule 24 requires.
D. Mr. Esshaki and Other Litigants Do Not Aadequately Represent the Applicant’s Interest.
Finally, Hawkins’s burden is likewise “minimal” on the factor of inadequate representation “‘because it is sufficient that the movant[] prove that representation may be inadequate.’ One is not required to show that the representation will in fact be inadequate.” Miller, 103 F.3d at 1247 (quoting Linton v. Commissioner of Health & Env’t, 973 F.2d 1311, 1319 (6th Cir. 1992)) (emphasis added); see Grutter, 188
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F.3d at 400 (all that is required is that the “representation might be inadequate”) (emphasis original). “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.” Miller, 103 F.3d at 1247.
Although amici and the Court have raised the constitutional problems with the Arbitrary Finance Committee Deadline, neither Plaintiff Esshaki nor the other intervening plaintiffs are impacted by the March 10 cutoff. They will not be seeking relief from this portion of the State’s new rules. It is not only possible but also likely that the parties’ arguments may be inadequate to protect Hawkins’s interests. Accordingly, Ms. Hawkins is entitled to intervention as of right. II. IN THE ALTERNATIVE, THIS COURT SHOULD PERMIT THE
APPLICANT TO INTERVENE UNDER RULE 24(b)(1)(B). Alternatively, the Court should allow Ms. Hawkins to intervene under the permissive intervention provisions of Federal Rule of Civil Procedure 24(b). Where as here “the motion for intervention is timely and there is at least one common question of law or fact,” the Court has broad and abundant discretion to grant the request. Miller, 103 F.3d at 1248 (citing Purnell, 925 F.2d at 950-51). Hawkins’s claims involve all the same First and Fourteenth Amendment rights to ballot access that Plaintiffs invoke as applied to the same 2020 election, the same Michigan election rules governing her candidacy, and the same proposed accommodations to remedy the unconstitutional burden. Common issues exist.
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As for whether the existing parties would suffer any undue burden from

intervention, the Court has broad discretion. Id.; see League of Women Voters of

Mich. v. Johnson, 902 F.3d 572, 578 (6th Cir. 2018). There is no actual likelihood

that Hawkins will significantly delay the proceedings. To date, she has participated

with amici and remained informed about the case. She promptly presents a clear

question that can be resolved amid existing and ongoing disputes over the State’s

accommodations. Her new counsel is and can be adequately and quickly informed.

Moreover, there is no other apparent prejudice that could result from her

participation. Hawkins respectfully submits that she has abundantly met the Rule’s

requirements.

CONCLUSION For each of the reasons above, Hawkins submits that under the circumstances,

her timely motion entitles her to intervene as of right under Rule 24(a) and firmly

supports an exercise of the Court’s discretion to permit her to intervene under Rule

24(b). The request to intervene should be granted.

Respectfully Submitted,

May 11, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2020, I electronically filed the foregoing

paper and attached exhibits with the Clerk of the Court using the ECF system, which

will send notification and copies of these filings to all counsel of record.

Respectfully Submitted,

May 11, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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EXHIBIT A

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,
Plaintiff-Intervenors,
v.
GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

VERIFIED COMPLAINT IN INTERVENTION OF SHAKIRA L. HAWKINS

Intervening Plaintiff Shakira L. Hawkins – as a candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position in Wayne County and individually as a voter – alleges for her Complaint in Intervention as follows:
Parties, Jurisdiction, and Venue 1. Intervening Plaintiff Shakira L. Hawkins is a resident of, and has
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resided and been domiciled in, Wayne County, Michigan for the past 20 years. 2. Hawkins is also a judicial candidate running for one of two non-
incumbent, full-term positions on the Wayne County Circuit Court in the primary election on August 4, 2020. Both open positions are in the criminal division.
3. Hawkins is a registered voter and will be voting in the August 4, 2020 primary elections for the judges of the Wayne County Circuit Court. She wishes to vote for herself on August 4, 2020.
4. Defendants are statewide governmental officials in Michigan, who have been sued in their official capacities. Hawkins accepts and adopts the other parties’ allegations about Defendants’ duties and role in the election process.
5. As set forth more fully below, Hawkins alleges under 42 U.S.C. § 1983 that Defendants’ joint application of certain election-law rules and certain emergency measures responding to the COVID-19 pandemic violates her rights to ballot access under the First and Fourteenth Amendments.
6. This Court has federal question jurisdiction and supplemental jurisdiction to address the federal constitutional and statutory issues in this case. 28 U.S.C. § 1331.
7. Venue is proper in the Eastern District of Michigan because most of the facts and events giving rise to Hawkins’s claim occurred here, 28 U.S.C.
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§ 1292(b)(2), and the Defendants are statewide officials who maintain offices throughout Michigan, reside in Michigan, conduct their relevant business in this District, and are subject to this Court’s personal jurisdiction. 28 U.S.C. § 1292(b)(1),(c)(2); Bay County Democratic Party v. Land, 340 F. Supp. 2d 802, 808 (E.D. Mich. 2004).
Background Facts 8. Hawkins is a member in good standing with the State Bar of Michigan. She has practiced criminal law for over 10 years. 9. Hawkins began her legal career at Legal Aid in the Civil Division in 1999 and then briefly served as executive director of My Sisters Place, a domestic violence shelter for women. 10. After family reasons compelled her to adjourn her legal practice for several years, Hawkins returned to the practice in 2010 focusing primarily on criminal defense. The vast majority of her cases are assignments from the Third Circuit Court as a member of the Wayne County Criminal Defense Bar Association, where she advocates forcefully on behalf of indigent clients. Hawkins is passionate about the law, justice and her work in defending the Constitutional rights of the accused. 11. In light of Hawkins’s residency and voting eligibility in Wayne County – and being less than 70 years old – Hawkins is qualified to seek nomination for the office of Judge of the Third Circuit Court. Mich. Comp.
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Laws § 168.411. 12. Hawkins has a broad base of community support and was very
excited about the opportunity to serve the community as a circuit court judge. 13. Like the other parties in this case, Hawkins observed certain
population-based signature filing quotas to run for office. Under Michigan election law, candidates for non-partisan offices within her geographical area (such as judges of the Third Circuit Court) must file at least 4000 signatures of registered and qualified electors to be listed on the August 4, 2020 primary election ballot. Mich. Comp. Laws §§ 168.413 and 168.544.
14. The original filing deadline for Hawkins to submit her signed petitions with the Michigan Department of State, Bureau of Elections was the fifteenth Tuesday before the primary election, which equated to April 21, 2020 at 4:00 p.m. Id.
15. Hawkins decided early in the current election cycle that she wanted to run for judge. She began gathering signatures in November 2019.
16. Over the next few months, she collected signatures at work and other busy public places. During the winter months when signatures are often difficult to collect, she asked family, friends and co-workers, as well as strangers, to circulate her petitions. She and her volunteers collected signatures during the March 10, 2020 presidential primary election by standing outside of polling places. She also stood outside busy businesses with the owners’
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approval and solicited signatures from patrons. 17. By on or about March 10, 2020, Hawkins had gathered
approximately 3000 signatures. As the weather thawed and her campaign ramped up, she was on schedule to easily meet her goal of collecting 5000 signatures by the original April 21 filing deadline.
18. For the purpose of regulating campaign fundraising and expenditures, the Michigan Campaign Finance Act, Mich. Comp. Laws §§ 169.201-.282, imposes additional requirements on “candidates.” For example, a candidate must form a committee within 10 days of becoming a candidate. Mich. Comp. Laws § 169.221(1). Defendant Secretary of State has authority to promulgate rules to implement the Act. Mich. Comp. Laws § 169.215(1)(e). According the Michigan Bureau of Elections:

An individual does not legally become a candidate under the Michigan Campaign Finance Act until he or she:

• Files a fee, Affidavit of Incumbency or nomination petition for elective officer; OR

• Is nominated as a candidate for elective office by a political party convention or caucus and certified to the appropriate filing official; OR

• Gives consent to someone else to receive a contribution or make and expenditure in an attempt to be nominated or elected to office.

See

Bureau

of

Elections

Publication,

https://mertsplus.com/mertsuserguide/index.php?n=MANUALCAN.TheState

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mentOfOrganizationFormingAndRegisteringACandidateCommittee#candef. (Emphasis in original). As a result, many candidates do not form their candidate committee until after they have filed their nomination petitions.
19. As of March 10, 2020, Hawkins had not raised campaign money, she had not yet gathered 4000 signatures for her nominating petition to secure a place on the ballot, and she had not consented to have anyone else make an expenditure on her behalf. As far as she knew, she was not officially a “candidate” for purposes of campaign finance. Instead, she was conducting a grassroots campaign.
20. As of March 10, 2020, nothing in the Michigan Campaign Finance Act disqualified Hawkins yet from being a candidate on the August 2020 primary ballot. See generally Mich. Comp. Laws § 169.220. Moreover, Defendants had not provided any guide, pamphlet or similar digestible material to inform a grassroots candidate that a committee must or should already have been formed by then.
21. On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID19 in Michigan. The pandemic had begun. In the initial stages of the pandemic, and consistent with the Governor’s cautionary admonishments, Hawkins stopped collecting signatures.
22. On March 23, 2020, in response to the pandemic, Governor
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Whitmer imposed major limitations through Executive Order 2020-21 (the first “Stay-At-Home Order”), which went into On March 24, 2020. Since then, the Order has been extended and has continued uninterrupted through a series of Executive Orders that are each the same with respect to campaign activities. In particular, the Stay-At-Home Orders do not create an exception for candidates or campaign staff.
23. During the early stages of the pandemic, Hawkins regularly called the Bureau of Elections at the Secretary of State to ask about accommodations for those seeking access to the ballot. Officials in that office told her that the matter was being discussed but no decisions had been made, and any changes would be posted on the Secretary of State’s website.
24. During this same early-pandemic period, Hawkins checked online daily and even called to ask how she could – or would be expected to – solicit signatures during the pandemic. Officials in the Secretary of State’s office told her to try collecting signatures by mail. Having run a grassroots campaign rather than fundraising, however, she could not afford to gather signatures that way.
25. When Hawkins realized the Defendants would not voluntarily make any timely accommodations, she renewed her campaign efforts utilizing any free and lawful means available to gather signatures.
26. Just as with the other parties to this case, the Defendant
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Governor’s Stay-at-Home Orders and the social distancing rules severely hampered Hawkins’s efforts to gather nominating signatures.
27. The Defendant Governor’s Stay-at-Home Orders, however, allowed individuals to go outside for recreation and exercise. Hawkins regularly took long daily walks on which she asked anyone outside who she encountered if they would sign and help her get on the ballot. Some of her volunteers collected signatures when using public transportation. One volunteer who lives in an apartment complex asked those passing through the lobby or doing laundry in a shared community room to sign petitions.
28. On April 20, 2020, this Court entered its Preliminary Injunction order, determining that the joint and collective application of the state’s rules – namely, the same rules under which Hawkins labored – imposed an unconstitutional burden upon the right to ballot access. For candidates who formed finance committees on or before the pandemic began on March 10, 2020, the Court ordered particular relief from the signature requirements. In particular, it relaxed the signature requirements of candidates for state office who “established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et seq., before March 10, 2020.” (ECF No. 23, PageID.359.)
29. At the time, the reference to March 10 may have been unremarkable for two reasons. First, because the original Plaintiff formed a
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campaign committee for federal office by October 2019, he is not impacted by a March 10, 2020 deadline for forming a candidate committee. Second, by April 20, Hawkins seemed to have enough signatures without an accommodation.
30. By April 21, 2020, Hawkins had gathered approximately 4283 signatures to support her nonpartisan nominating petitions, which she timely filed. At first, therefore, it seemed as if she would not need to avail herself of a constitutional challenge.
31. But for the pandemic and this state’s Stay-at-Home Orders, Hawkins would have collected at least 5000 signatures and would have easily qualified for the ballot and would have likely submitted at least 5000 signatures.
32. As a result of her steadfast, prompt and compliant efforts in the face of the pandemic, Hawkins’s name was placed on the 2020 Michigan candidate unofficial primary ballot where it currently remains.
33. On April 29, 2020, the Secretary of State notified Hawkins that a sworn complaint had been filed challenging her candidacy and stating that of the 4283 petition signatures she submitted, only 3885 were valid, causing her to fall short of the required minimum by 115 signatures.
34. Hawkins formed her candidate committee on May 1, 2020, ten days after filing her petition signatures. She filed her statement of organization
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on May 6, 2020, six days after forming her candidate committee. 35. As of today, Hawkins has collected an additional 231 signatures to
surmount the 115-signature gap, 70 of which were acquired before April 21, 2020 but were not filed because volunteer canvassers had difficulty returning them to Hawkins before the deadline. These signatures further support that she has actual, substantial, public support for her campaign.
36. On May 5, 2020, the United States Court of Appeals issued an opinion in this case holding that this Court properly enjoined the Defendants from enforcing the ballot-access provisions unless it provides reasonable accommodations to aggrieved candidates.
37. Following appellate review of the Court’s earlier order, Defendants submitted to the Court their proposed accommodations to ameliorate the unconstitutional impact of their rules on the candidates.
38. The Defendants’ proposed accommodations initially would have allowed candidates to submit 70% of the ordinary number of required signatures and to submit additional signatures until May 11, 2020. They also included a requirement that a campaign finance committee must have been formed by March 10, 2020 (the “Arbitrary Finance Committee Deadline”). During a hearing on May 7, 2020, the Court expressed the firm view that both the 70% threshold and the Arbitrary Finance Committee Deadline would likely be unconstitutional.
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39. As a result of the hearing, Defendants published on its website the new signature requirements on May 8, 2020, which now allow candidates to submit 50% of the ordinary number of required signatures (“Relaxed Signature Requirement”) and to have submitted additional signatures by that same day, i.e., May 8, 2020 (“Relaxed Deadline”). The State’s published accommodations also reaffirm and impose the Arbitrary Finance Committee Deadline despite the Court’s admonitions, thus denying the benefit of the relaxed requirements to individuals who had not formed a campaign finance committee by March 10, 2020.
40. The Arbitrary Finance Committee Deadline lacks any rational basis in relation to the statutes and purposes that it serves, let alone being narrowly tailored to any compelling governmental interest.
41. Defendants lack sufficient statutory or other authorization to impose the Arbitrary Finance Committee Deadline. Neither the Michigan legislature nor the governor, acting pursuant to emergency powers, authorized the Arbitrary Finance Committee Deadline. Defendants’ enforcement of this unauthorized Arbitrary Finance Committee Deadline constitutes unconstitutional and ultra vires state action. Regardless of each State’s authority to prescribe its own rules for elections, the Court has authority to prohibit agency officials from acting of their own accord to impose unauthorized and unconstitutional rules.
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42. As a direct and sole result of the Arbitrary Finance Committee Deadline, Defendants are preventing Hawkins from gaining the benefit of the Relaxed Signature Requirement and the Relaxed Deadline, even though she is more prepared than other similarly situated parties to meet both qualifications.
43. The Arbitrary Finance Committee Deadline does not reasonably accommodate serious candidates or differentiate them from late-joiners who might seek to reap a windfall through the Relaxed Signature Requirement or Relaxed Deadline.
44. The Stay-At-Home Order that existed on April 20 when this Court issued its original preliminary injunction was, at the time, set to expire on April 30, but it has since been extended to May 28. In reality, there is no significant or meaningful risk that candidates who lacked a preexisting candidacy or a reasonable modicum of support could somehow collect the signatures necessary during the less-than-three-week period between the Court’s Order on April 20 and the Relaxed Deadline of May 8.
45. Hawkins was working diligently to qualify for the August 4 ballot long before this Court’s order of April 20, 2020, and her decision to run was wholly independent from that Order. By April 21, 2020, she had gathered approximately 4000 valid signatures – nearly twice the amount necessary under the Relaxed Signature Requirement.
46. Absent this Court’s action to fashion an injunction that enables
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Hawkins to gain the benefit of this Court’s Order or Defendants’ proposed accommodations, Hawkins will not qualify for the ballot.
47. Preventing Hawkins from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate committee and filing a Statement of Organization creates a severe burden on her rights to ballot access and to association.
COUNT I - VIOLATION OF FIRST AND FOURTEENTH AMENDMENT RIGHTS
(As applied to Hawkins as a candidate) 48. Hawkins incorporates the preceding Paragraphs by reference. 49. Considering the existence of an unprecedented viral pandemic and Governor Whitmer's Stay-At-Home Orders, the concurrent application and enforcement of Michigan’s election laws including Mich. Comp. Laws §§ 168.413; 168.544, as well as the Defendants’ proposed accommodations including the Arbitrary Finance Committee Deadline, is unconstitutional as applied to Hawkins. 50. Enforcement of the statutes as written unconstitutionally required Hawkins to collect and submit 4000 signatures by April 21, 2020, while Defendants simultaneously ordered her to not leave her home. Defendants’ actions actually prevented Hawkins from gathering enough signatures to insulate her from an opponent’s challenge. 51. Defendants’ enforcement of the Arbitrary Finance Committee
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Deadline unconstitutionally and arbitrarily treats Hawkins differently from similarly situated parties and candidates. While she was more prepared and closer to compliance than other candidates who now receive relief under the accommodations, that arbitrary deadline prevents her from availing herself of the same Relaxed Signature Requirement or Relaxed Deadline.
52. Defendants’ actions effectively prohibit Hawkins from getting the required number of signatures, and in turn, prevent her from having her name placed on the August 4, 2020 primary ballot, which violates Hawkins’s freedom of speech and association, equal protection, and due process rights as guaranteed by the First and Fourteenth Amendments and enforced through 42 U.S.C. § 1983.
53. Under the circumstances, Defendants’ actions and requirements are burdensome, unreasonable, and are not narrowly tailored to meet any compelling or legitimate state interest.
49. These violations immediately injure Hawkins and will continue to injure her in the future in the absence of relief from this Court.
COUNT II - VIOLATION OF FIRST AND FOURTEENTH AMENDMENT RIGHTS
(As applied to Hawkins as a registered voter) 54. Hawkins incorporates the preceding Paragraphs by reference. 55. As a registered voter, Hawkins has a constitutional right to effectively cast her vote.
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56. The unconstitutional exclusion of Hawkins’s candidacy through the unconstitutional enforcement of the State’s ordinary deadlines and signature requirements deprives her of an effective choice at the ballot, is unreasonable, and fails to be narrowly tailored to any compelling state interest.
57. Defendants’ enforcement of the Arbitrary Finance Committee Deadline likewise effectively deprives her of an effective choice at the ballot, is unreasonable, and fails to be narrowly tailored to any compelling state interest.
58. Defendants’ enforcement of these statutes and rules, as well as their imposition and enforcement of the Arbitrary Finance Committee Deadline, hinders Hawkins’s opportunity to choose among competing alternatives at the ballot, which would otherwise exist.
59. Hawkins is immediately injured by these unconstitutional acts. Prayer for Relief
WHEREFORE, Hawkins respectfully asks this Honorable Court to enter a judgment in her favor and against Defendants and grant the following relief:
A. Enter declaratory judgment, as authorized by 28 U.S.C. §§ 22012202 and Federal Rule of Civil Procedure 65, holding that the above mentioned sections of the Michigan election-law statutes are unconstitutional as applied to Hawkins in her capacity as a candidate for nonpartisan judicial office and as a qualified voter;
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B. Enter a temporary restraining order and/or preliminary injunction,

and permanent injunction, barring Defendants from enforcing the original

deadline and/or signature requirements, as well as the Arbitrary Finance

Committee Deadline;

C. Enter an order enjoining Defendants from denying Hawkins the

benefit of the Relaxed Signature Requirement and the Relaxed Deadline, or

requiring them to otherwise place and confirm Hawkins’s name on the ballot;

D. Award attorneys' fees pursuant to 42 U.S.C. § 1988; and

E. Award such other relief as the Court deems just and proper.

Respectfully submitted,

May 11, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu Saura J. Sahu (P69627) Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

VERIFICATION

Pursuant to 28 U.S.C. § 1746, I, Shakira L. Hawkins, Esq., declare under

penalty of perjury that to the best of my knowledge and belief, each and every

factual allegation in this Complaint in Intervention is true and correct.

May 11, 2020

/s/Shakira L. Hawkins Plaintiff-Intervenor Shakira L. Hawkins

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,

Plaintiff,

MATT SAVICH and DEANA BEARD,

Plaintiff-Intervenors, v.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

INTERVENING PLAINTIFF HAWKINS’S SUPPLEMENTAL BRIEF IN SUPPORT OF INTERVENTION (ECF NO. 047)

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STATEMENT OF ISSUES PRESENTED 1. Does Plaintiff-Intervenor Hawkins has standing to bring her claim given that
her name is currently on the ballot? 2. Did Plaintiff-Intervenor Hawkins personally make any expenditures as of
March 10, 2020 that would have necessitated establishment of a candidate committee under Michigan Election Law? See Mich. Comp. Laws § 169.203(1)(c).
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Plaintiff-Intervenor, Shakira L. Hawkins, respectfully submits this response to the Court’s 05/12/2020 Text Only Order that she “file supplemental briefing addressing:
(i) whether she has standing to bring her claim given that her name is currently on the ballot, and (ii) whether she personally made any expenditures as of March 10, 2020 that would have necessitated establishment of a candidate committee under Michigan Election Law. See Mich. Comp. Laws § 169.203(1)(c). In so Ordering, the Court properly anticipates that certain Parties will raise – and indeed have suggested – these same issues although neither issue is material to her intervention under Rule 24, and both issues have an answer that further supports it. I. Plaintiff Has Standing. The Court has fairly inquired into Hawkins’s standing. Although Rule 24’s standards do not require standing, Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997), and a case is justiciable whenever, as here, at least one other plaintiff has standing, see Horne v. Flores, 557 U.S. 433, 446-47, 129 S. Ct. 2579 (2009), cited in Parsons v. United States DOJ, 801 F.3d 701, 710 (6th Cir. 2015), the other parties can be expected to argue the point. As applied to this ballot-access case, the key issue could be rephrased: Does Hawkins face an actual or imminent denial of access to the ballot if her name is, in fact, on the ballot? The answer is: Yes because her name is not on the ballot and the State will refuse to put it on the ballot unless this Court takes action. Case authority
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for the application of the standing doctrine appears below, e.g., Parsons, 801 F.3d at 710, but Hawkins first responds directly to the crux of the Court’s question.
Hawkins’s diligent grassroots work in gathering 4283 preliminary signatures by April 21, 2020 earned her a provisional place on the unofficial primary ballot. (ECF No. 47, PageID.698.) Yet no candidate is “on the ballot” until the State’s period for publishing and finalizing the official primary ballots is complete. See, e.g., Mich. Comp. Laws §§ 168.565-.568. In this respect, Hawkins is exactly similarly situated to the other parties. In order for Defendants to place her name “as a candidate for nomination for the office of judge of the circuit court upon the official nonpartisan primary ballots,” Mich. Comp. Laws § 168.413(1) (emphasis added), she must meet the same signature requirements and April 20, 2020 filing deadline held to be unconstitutional in this case, id.
Although Hawkins had 4283 signatures on April 21, 2020, (see ECF No. 47, PageID.698), on April 28, 2020 someone challenged 398 of those signatures with the assistance of counsel. (Exh. A: Def. Sec. of State Pkt.) The challenger maintains that Hawkins neither meets the requirements of §§ 168.413(1) and 168.544f (imposing the 4000-signature requirement) nor is eligible for an accommodation related to this lawsuit because she did not form a candidate committee by March 10. (Id.) The challenger relies on the State’s imposition of an unconstitutional and arbitrary March 10 deadline. (Id.) If the challenge undermines at least 284 signatures, Defendants
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will not place her name on the ballot under the Michigan Election Law. See Mich. Comp. Laws § 168.552(8),(11),(14). Hawkins’s response was due today. (Id.)
Absent a response, at least 284 of the 398 challenged signatures will be stricken. Having consulted with experienced advisors, Hawkins determined that as a practical matter she probably would not be able to rehabilitate enough of the challenged signatures to meet the 4000 minimum. (Exh. B: Decl. of S. Hawkins.) Hawkins also lacked the campaign funds and other resources to file a response, which will be a significant, unnecessary expense if the State or the Court grants the relief she requests from the unconstitutional March 10 “deadline.” Id. Unfortunately, the State refused to relax requirements to allow her to file additional signatures after April 21, 2020. Id. To date, Defendants disregarded this Court’s admonishment about the constitutional problems of the March 10 deadline. Instead they are strictly enforcing their new, arbitrary March 10 candidate-committee deadline against Hawkins, id., along with their collectively unconstitutional filing requirements and deadlines in §§ 168.413(1) and 168.544f. The State’s denial of ballot access to her is actual or imminent.
To support constitutional standing here, a litigant must show she suffers an actual or imminent and particularized injury-in-fact, which traces to the Defendant’s actions and is properly redressable by the Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130 (1992), discussed in Friends of the Earth, Inc. v.
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Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S. Ct. 693, 704 (2000). Where, as here, “the plaintiff’s own constitutional rights were violated” the plaintiff suffers an injury-in-fact and usually has standing, e.g., United States v. Johnson, 932 F.3d 965, 967 (6th Cir. 2019) (discussing Bond v. United States, 564 U.S. 211, 225, 131 S. Ct. 2355 (2011)), and a sufficient injury can also take the form of the other hardships that might result from the State’s challenged action, e.g., LULAC v. Bredesen, 500 F.3d 523, 528 n.4 (6th Cir. 2007) (“ the difficulties, inconvenience or hardship with which the new driver license law allegedly threatens plaintiffs represents an injury-in-fact”).
Here, there is no doubt – based on the Court’s prior rulings – that the Stay-AtHome Orders and strict application of the Michigan Election Law to Hawkins and other parties alike not only created the kind of hardship that supports standing but also actually violated her First and Fourteenth Amendment rights as a candidate and a voter absent an accommodation. As for causation and redressability, there is no serious question that the State is directly causing the disputed harms, or that the requested injunction and remedies under 42 U.S.C. § 1983 will relieve those harms. II. Campaign Expenditures.
Despite the major constitutional burdens and problems that the Court warned Defendants about on May 7, the State imposed the March 10 cutoff and argues roughly that a person is only a serious candidate if they formed a candidate
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committee under the Campaign Finance Act by the arbitrary date of March 10. After Defendants raised the issue, the Court enquires whether Hawkins personally made any expenditures by March 10, 2020 to trigger the committee-formation requirements of Mich. Comp. Laws § 169.203(1)(c).
If Hawkins made early expenditures, they were relatively de minimus, which is consistent with her lack of fundraising. But that does not end the controversy. It strains credulity to believe that Hawkins did not spend a dollar or two on copying costs. Under the State’s current strict reading of Mich. Comp. Laws § 169.203(1)(c) and § 169.221, the answer is: For purposes of this Motion to Intervene Yes, Hawkins probably committed a technical violation of Mich. Comp. Laws § 169.221, and the Court should assume arguendo that she did. She corrected that violation on May 1, within 10 days of submitting her 4283 petition signatures. And rather than supporting Defendants, Sections 203 and 221 of the Campaign Finance Act show why Hawkins should be able to intervene and prevail.
The Michigan Campaign Finance Act is separate from the Michigan Election Law that imposes the unconstitutional signature requirements. It is a once-removed place from which the State tries to derive an unauthorized criterion of candidate legitimacy. Its only relevance here concerns whether it provides a narrowly tailored test to serve the interest in ensuring that only candidates with a modicum of support make it to the ballot. Michigan courts recognize that:
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The Campaign Finance Act, like the Internal Revenue Code, is exceedingly complex and detailed. A summary prepared by the Michigan Secretary of State of its provisions and regulations is fifty-three pages in length. See The Candidate Committee Manual, Michigan Secretary of State (1984). The occurrence of frequent unintended violations of the regulatory scheme is anticipated by the legislation itself, which establishes a conciliation procedure to be used by the Secretary of State "to correct or prevent further violation." People v. Weiss, 191 Mich. App. 553, 562, 479 N.W.2d 30, 34-35 (1991). Technical
violations of the Act abound in real politics, regardless of good faith. They are so
common that the structure of the statute accounts for them. While important to ad-
dress, they have nothing to do with whether a candidate is serious, well intentioned
or well supported by the public.
In addition, nothing in the statute disqualifies someone from being a candi-
date, imposes a March 10 deadline, or authorizes the Secretary of State to impose an
arbitrary March 10 deadline. At a maximum, moreover, the person that violates the
committee formation requirement is subject to a civil fine of not more than
$1,000.00. Mich. Comp. Laws § 169.221(13). Importantly, a technical violation
should be addressed with informal conciliation aimed to promote compliance while
the candidate continues to run:
If the secretary of state determines that there may be reason to believe that a violation of this act occurred, the secretary of state shall endeavor to correct the violation or prevent a further violation by using informal methods such as a conference, conciliation, or persuasion, and may enter into a conciliation agreement with the person involved. Unless violated, a conciliation agreement is a complete bar to any further civil or
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criminal action with respect to matters covered in the conciliation agreement. Mich. Comp. Laws § 169.215(10). Ordinary non-compliance is not in any way an excuse to allow or impose unconstitutional burdens on ballot access. Indeed, if the question is whether Hawkins was a “candidate” on March 10 – so that she can avail herself of the protections of her First and Fourteenth Amendment rights burdened by the Stay-At-Home Orders during the COVID-19 pandemic – then the very invocation of Section 221 must mean that she was in fact a candidate. After all, the State cannot even require the formation of a committee under Section 221 unless someone is, in fact, a “candidate” under Section 203(1). Mich. Comp. Laws §§ 203, 221. Put glibly but accurately, the State’s answer is mainly circular. It says she is not a candidate because she did not form a candidate committee, but she cannot need a candidate committee unless she is a candidate. The actual definition of a “candidate” is set forth in Section 203(1), and according the State’s position here, Hawkins was one and met that definition on March 10. The only remaining question is whether she had a modicum of support. Respectfully, her 4000 signatures – more than any other Party – abundantly demonstrate that support and are more narrowly tailored to it than a technical requirement relating primarily to fundraising. More to the point, there is no sense whatsoever in which the State’s March 10, 2020 cutoff is narrowly tailored to any compelling governmental interest. It defies the Court’s May 7 admonishment and is unconstitutional
9

Case 2:20-cv-10831-TGB-EAS ECF No. 49 filed 05/12/20 PageID.717 Page 10 of 11

as applied. At least in American theory and principle, voters – not dollars – choose

candidates.

It would be perverse for the Parties and the Court to hold here that one’s enti-

tlement to a constitutional right and the protection from its violation turn not upon

the will of the public as manifest in voter signatures, but instead upon whether one

formed a technical committee necessary for campaign fundraising under the Cam-

paign Finance Act.

CONCLUSION

Plaintiff has standing, and the Defendants’ insistence upon an arbitrary March

30, 2020 cutoff despite this Court’s admonishments against that measure should not

derail intervention.

Respectfully Submitted,

May 11, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

10

Case 2:20-cv-10831-TGB-EAS ECF No. 49 filed 05/12/20 PageID.718 Page 11 of 11

CERTIFICATE OF SERVICE

I hereby certify that on May 12, 2020, I electronically filed the foregoing pa-

per and attached exhibits with the Clerk of the Court using the ECF system, which

will send notification and copies of these filings to all counsel of record.

Respectfully Submitted,

May 12, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

11

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.719 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,

Plaintiff,

MATT SAVICH and DEANA BEARD,

Plaintiff-Intervenors, v.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

EXHIBITS A & B TO INTERVENING PLAINTIFF HAWKINS’S SUPPLEMENTAL BRIEF
IN SUPPORT OF INTERVENTION (ECF NO. 047)

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.720 Page 2 of 18
EXHIBIT A

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.721 Page 3 of 18
Fw: Challenge on Nominating Petitions Filed detroitsh@aol.com <detroitsh@aol.com>
Tue 5/12/2020 1936 PM To: Saura Sahu <sahu@clancyadvisors.com>
1 attachments (86 KB) Shakira Lynn Hawkins - Challenge of Third Circuit Petitions(34613446_1).pdf;
Sent from my MetroPCS 4G LTE Android device
------ Original message-----From: SOS, Elections Date: Wed, Apr 29, 2020 12922 PM To: detroitsh@aol.com; Cc: Malerman, Melissa (MDOS);Fracassi, Adam (MDOS); Subject:Challenge on Nominating Petitions Filed
This email is to notify you a challenge against your candidacy was filed with the Board of State Canvassers (Board) pursuant to section 552(8) of the Michigan Election Law, 1954 PA 116, MCL 168.552(8). A copy of the challenge, which was timely filed by Peter Ruddell representing Joseph Girardi , is attached to this email. Please be advised that the Board will tentatively meet during the last week of May or first week of June to address the challenge to your candidacy. You may file a written response to the challenge. Your deadline for rebuttal is on or before May 12 at 5900 p.m. We recommend receiving the rebuttal as soon as possible to make it easier for us to process it. Please provide 4 copies of your response. Correspondence sent by overnight delivery must be addressed as follows: Board of State Canvassers, 430 West Allegan Street, lg Floor, Lansing, Michigan 48933. The Bureau of Elections Staff Report regarding the disposition of the challenges to your nominating petitions will be issued at least two business days prior to the date that the Board convenes. MCL 168.552(10). Copies of the Staff Report and public notice of the Board meeting will be emailed to you upon release. You will receive the attached challenge via overnight mail within the next couple of days. Please let me know if you have any questions. Thank you,
1 of 2

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.722 Page 4 of 18 Lydia Valles Bureau of Elections 1-800-292-5973 Elections@Michigan.gov
2 of 2

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.723 Page 5 of 18

STATE OF MICHIGAN BEFORE THE BOARD OF STATE CANVASSERS
*****

Jonathan Brater, Secretary

)

Board of State Canvassers

Michigan Bureau of Elections

Richard H. Austin Building, First Floor

430 W. Allegan Ave.

Lansing, MI 48918

CHALLENGE TO THE PETITIONS SUBMITTED ON BEHALF OF SHAKIRA LYNN HAWKINS FOR 3RD CIRCUIT JUDGE OF THE CIRCUIT COURT
(NON-INCUMBENT)

Dated: April 28, 2020

Peter B. Ruddell (P63253) Honigman LLP 222 North Washington Square Suite 400 Lansing, MI 48933-1800 (517) 377-0711 Attorneys for Challenger

34602371.3

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.724 Page 6 of 18
I. CHALLENGE In order to be eligible to be on the ballot as a 3rd Circuit Judge of the Circuit Court (sixyear term, non-incumbent), a candidate shall submit a minimum of 4,000 valid petition signatures and may submit a maximum of 8,000 valid petition signatures (MCL 168.544f). According to the Michigan Bureau of Elections, on April 21, 2020, Ms. Shakira Lynn Hawkins submitted 4,283 petition signatures in order to be eligible to be a candidate for 3rd Circuit Judge of the Circuit Court (six-year term, non-incumbent). As required under Michigan law, Ms. Hawkins submitted the petition signatures to the Secretary of State (MCL 168.413). On April 20, 2020, Judge Terrence G. Berg issued an order extending the filing deadline to May 8, 2020 and reducing the number of eligible petition signatures by 50% for certain candidates. Those candidates eligible for relief under the order are those candidates who “established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et seq., before March 10, 2020.” (Esshaki v. Whitmer, No. 2:20-CV-10831TGB (E.D. Mich, April 20, 2020). According to the Michigan Bureau of Elections, Ms. Hawkins did not form a candidate committee prior to March 10, 2020. Therefore, the provisions of Judge Berg’s order do not apply to the petition signatures filed on behalf of Ms. Hawkins, and she is required to submit 4,000 valid petition signatures prior to the filing deadline. Ms. Hawkins failed to submit enough valid petitions signatures. After a review and analysis, Ms. Hawkins submitted 3,885 valid petition signatures, failing to meet the minimum number required (MCL 168.544f). Attached as Exhibit 2 is a table identifying the petition signatures that are invalid for the reasons listed below. A. Not Registered Voter as Petition Signature Based on a good faith effort to search the qualified voter file, names of petition signatures are not on the qualified voter file. In order to sign a nominating petition, an individual shall be a
1
34602371.3

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.725 Page 7 of 18
registered voter (MCL 168.413). There are petition signatures of individuals who are not registered voters in Michigan (Exhibit 2).
B. Technical Objections to the Petition Signature Line Based on a review of the petitions submitted on behalf of Ms. Hawkins, there are individuals who signed petitions on duplicate occasions, invalidating both petition signatures; invalid dates on the signature line; no date on the circulator’s line; no jurisdiction listed; no street address listed; petitions submitted for incorrect office; petition signatures were dated after the circulator’s signature date; and address listed is not in the jurisdiction listed (Exhibit 2). C. Genuineness of the Signature In addition to the deficiencies noted above, a routine canvass of the petition signatures will cause the Board of State Canvassers to be in doubt as to the validity of the registration or genuineness of the signature of the circulator or persons signing or purported to have signed the petitions. One need not be a handwriting expert to question the genuineness of many of the petition signatures submitted – particularly those circulated by Cynthia Adams. On behalf of the challenger, we plan to submit additional information questioning the genuineness of additional petitions. We urge the Board of State Canvassers to conduct a thorough canvass and investigation into the validity of the petition signatures submitted.
II. SWORN STATEMENT As required under Michigan election law, attached as Exhibit 1 is a sworn statement by Joseph Girardi, who is a resident of the City of Grosse Pointe Farms and a registered voter who is a qualified elector in the Third Circuit (MCL 168.552).
III. CONCLUSION For the reasons set forth above and contained in the sworn statement, it is respectfully requested that Ms. Shakira Lynn Hawkins’s name not be included on the list and certified as a
2
34602371.3

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.726 Page 8 of 18
candidate and that her name not be placed on the ballot for the 3rd Circuit Judge of the Circuit Court (six-year term, non-incumbent) for a term, ending January 1, 2027 in the Primary Election on August 4, 2020.
Respectfully submitted, HONIGMAN LLP Attorneys for Challenger

Dated: April 28, 2020

By: Peter B. Ruddell (P63253)
222 North Washington Square Suite 400 Lansing, MI 48933-1800 (517) 377-0711 pruddell@honigman.com

3
34602371.3

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.727 Page 9 of 18
Exhibit 1

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.728 Page 10 of 18

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.729 Page 11 of 18
Exhibit 2

Case 2:20-cv-10831-TGB-EAS ECFShNakoi.ra5L0ynnfilHeadw0ki5n/s12/20 PageID.730 Page 12 of 18
Petition Challenges

Petition # 1 2 3 4 5 6 18 22 23 24 25 29 30 32 33 37 38 53 54 57 59 60 61 64 71 90
101 102 104 106 107 109 111 119 149 153 155 156 157 163 174 175 178

Line(s) #

Invalid Reason

1-14 Not Registered

1-14 Not Registered

1-14 Not Registered

1-14 Not Registered

1-14 Not Registered

1-14 Not Registered

1-12 Dated after Circulator

14 Dated after Circulator

9-14 Dated after Circulator

10-13 Dated after Circulator

8-13 Dated after Circulator

8,9,11,12,13 Dated after Circulator

3-8,10-14 Dated after Circulator

2,4-14 Dated after Circulator

14 Dated after Circulator

12 Signature not dated

9-14 Dated after Circulator

3-14 Dated after Circulator

5-14 Dated after Circulator

6=14 Dated after Circulator

1-14 Dated after Circulator

4-14 Dated after Circulator

9-14 Dated after Circulator

3-14 Dated after Circulator

1-12 Circulator signature not dated

9,10,11,13,14 Dated after Circulator

3-14 Dated after Circulator

3-14 Dated after Circulator

3-14 Dated after Circulator

7-14 Dated after Circulator

2-14 Dated after Circulator

1-14 Dated after Circulator

14 Dated after Circulator

1-13 Circulator signature not dated

2 Signature not dated

14 Dated after Circulator

13 Invalid date (1966)

4,5 Signature not dated

9 Signature not dated

1-11 Dated after Circulator

2-4 Dated after Circulator

2-9 Dated after Circulator

3-14 Dated after Circulator

# bad 14 14 14 14 14 14 12 1 6 4 6 5 11 12 1 1 6 12 10 9 14 11 6 12 12 5 12 12 12 8 13 14 1 13 1 1 1 2 1 11 3 8 12

34604821.1

Case 2:20-cv-10831-TGB-EAS ECFShNakoi.ra5L0ynnfilHeadw0ki5n/s12/20 PageID.731 Page 13 of 18
Petition Challenges

Petition # 193 196 203 205 215 220 221 224 243 281 288 305

Line(s) #

Invalid Reason

12 Signature not dated

10-14 Dated after Circulator

1-14 Circulator signature not dated

13 Dated after Circulator

1 Invalid date (1974)

5-14 Dated after Circulator

13 Invalid date (1983)

3,8 Signature not dated

12,13 Dated after Circulator

14 Invalid date

10,12 Signature not dated

10 Signature not dated

# bad 1 5 12 1 1 10 1 2 2 1 2 1

34604821.1

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.732 Page 14 of 18
EXHIBIT B

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.733 Page 15 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,

Plaintiff,

MATT SAVICH and DEANA BEARD,

Plaintiff-Intervenors, v.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

DECLARATION OF SHAKIRA HAWKINS IN SUPPORT OF INTERVENTION (ECF NO. 047)

Pursuant to 28 U.S.C. § 1746, I declare as follows: 1. I am a competent adult and have personal knowledge of the facts set forth herein. 2. Exhibit A to my Supplemental Brief (i.e., ECF No. 49) is a true and correct copy of an email that I received on April 29, 2020, together with its attachments.

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3. After receiving notice of the challenge to my petition, I promptly consulted with more than three people who are familiar with election law challenges about the process for responding. I also wrote to the Secretary of State to ask about the process and about my petition. One of the consultants received and preliminarily reviewed the challenge to my petition. Based on my discussion with that consultant, I determined that as a practical matter I probably could not rehabilitate enough of the challenged signatures to meet the 4000-signature minimum in Mich. Comp. Laws § 168.544f.
4. To date, I have not engaged in any campaign fundraising activities. 5. When consulting about a potential response to the challenge, I received two estimates for the cost of assisting in filing such a response. One presented a flat fee of $5,000 and another estimated fees approximating $6,000. Those are significant costs in a grassroots campaign or a personal budget. I do not currently have campaign money to pay such fees. Moreover, between the April 28 challenge and the May 12 response deadline, the Governor’s Stay-At-Home Orders have continued to be in effect, and I have not had any meaningful opportunity to raise funds to pay for such a challenge. 6. On April 20, 2020, I contacted the Secretary of State to inquire whether the reduced signature requirement and extended filing deadlines would apply to my campaign. The Secretary of State told me: No, they would not apply unless I filed a
2

Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.735 Page 17 of 18
Statement of Organization on or before March 10, 2020. Since then, either the Court or – after appeal – the State has adopted a requirement that the signature and filing requirements will only be relaxed if I formed a campaign committee by March 10, 2020, and otherwise the statutes will be strictly enforced. While the State might physically take additional signatures, they have not indicated that they would accept them and count them toward my petition. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 12th day of May, 2020, by: /s/Shakira L. Hawkins Shakira L. Hawkins
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Case 2:20-cv-10831-TGB-EAS ECF No. 50 filed 05/12/20 PageID.736 Page 18 of 18

CERTIFICATE OF SERVICE

I hereby certify that on May 12, 2020, I electronically filed the foregoing pa-

per and attached exhibits with the Clerk of the Court using the ECF system, which

will send notification and copies of these filings to all counsel of record.

Respectfully Submitted,

May 12, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.737 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,

Plaintiff,

MATT SAVICH and DEANA BEARD,

Plaintiff-Intervenors, v.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

INTERVENING PLAINTIFF HAWKINS’S MOTION FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

Pursuant to Rule 65(b)(1) of the Federal Rules of Civil Procedure and Local Rule 65.1, Intervening Plaintiff Shakira L. Hawkins hereby moves the Court to issue a Temporary Restraining Order, Preliminary Injunction and Permanent Injunction enjoining Defendants from (1) enforcing the normal signature requirements set forth in Mich. Comp. Laws §§ 168.413 and 168.544 of the Michigan Election Law against

1

Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.738 Page 2 of 22
her in light of the fact that the State’s Stay-at-Home Order made it a misdemeanor to collect signatures in person after March 23, and (2) preventing her from gaining the benefit of the State’s relaxed signature requirement simply because she did not form a candidate committee under the separate Michigan Campaign Finance Act by March 10, 2020.
Under LR 65.1, it is not necessary to seek concurrence in this emergency ex parte request. Notwithstanding, on March 11, 2020, counsel sent brief emails to counsel of record indicating that a motion for injunctive relief would be filed and seeking their concurrence. Today, March 12, 2020 at approximately 7:30 a.m., undersigned counsel sent a more detailed email to all counsel of record and Plaintiff Esshaki identifying the motion and the relief sought, requesting concurrence by noon today. As of the time of this filing, Defendants and Plaintiff-Intervenor Beard do not concur, whereas amici ACLU of Michigan and Daniel Finley do concur. The other parties and participants have not yet responded, and concurrence has not been obtained.
In support of this Motion, Plaintiff relies upon the attached brief, as well as upon the movant’s Verified Complaint in Intervention (See ECF No. 47, PageID.690.)
///
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May 12, 2020

Respectfully Submitted,
CLANCY ADVISORS PLC
By: /s/Saura J. Sahu Saura J. Sahu (P69627) Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.740 Page 4 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff,
MATT SAVICH and DEANA BEARD,
Plaintiff-Intervenors,
v.
GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

BRIEF IN SUPPORT OF INTERVENING PLAINTIFF HAWKINS’S MOTION
FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.741 Page 5 of 22
STATEMENT OF ISSUES PRESENTED 1. Should the Court grant temporary, preliminary and permanent injunctive re-
lief to Hawkins because she is highly likely to succeed in showing that the State’s selective application of relaxed signature requirements only to people who formed a Candidate Committee by March 10 is unconstitutional, and the balance of the harms, equities and interests favors Hawkins? Hawkins answers: Yes

Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.742 Page 6 of 22
MOST CONTROLLING AUTHORITY The single most useful authority on this Motion is the Court’s April 20, 2020 Order in this case, ECF No. 47, PageID.321, which, in turn, contains the most controlling authorities.

Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.743 Page 7 of 22
INTRODUCTION At the hearing on Defendants’ proposed modifications last Thursday, this Court reportedly made it clear to Defendants that it believed it would be unconstitutional to prevent candidates who did not form a candidate committee before March 10 from gaining the benefit of the relaxed signature requirements. Nonetheless, on Friday, Defendants ignored the Court’s admonition and published new rules that contained that very provision. As a result, unless this Court acts promptly, Intervening Plaintiff Shakira Hawkins will be denied her fundamental rights under the First and Fourteenth Amendment rights. As established below, the March 10 deadline is not narrowly tailored – or even rationally related – to any compelling state interest. Ms. Hawkins has more than a modicum of support; she has collected nearly twice the number of valid signatures required under the state’s current rule that candidates need only gather 50% of the normal number of signatures to be placed on the ballot. Additionally, she is not someone who suddenly decided to run for office to take advantage of a relaxed signature requirement. To the contrary, she started gathering signatures in November 2019, and by March 10 she had gathered approximately 3000 of the necessary 4000 signatures needed to be placed on the ballot as a judicial candidate for Wayne County Circuit Court. In fact, she did not know that there would be a relaxed signature requirement until April 20, when this Court issued
1

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its preliminary injunction. By then, she had collected more than 4000 signatures, and if there were no challenges to her petitions, she would have qualified under the normal signature rules despite the pandemic and State-at-Home orders.
FACTUAL BACKGROUND Plaintiff-Intervenor Hawkins’s Verified Complaint in Intervention sets forth the factual basis of her rights to relief here. It is incorporated by reference. 1. Hawkins is an Established, Motivated, Grassroots Candidate With Substantial Public Support. Hawkins is a properly qualified judicial candidate running for one of two non-incumbent, full-term positions in the criminal division of the Wayne County Circuit Court. (ECF No. 47, PageID.691-692.) Were it not for the global COVID-19 pandemic and the resulting Stay-at-Home orders that made it a misdemeanor to collect signatures in person, she would be on the ballot in the August 2020 primary election. Hawkins is also a properly registered voter who wants to vote for herself that election. Hawkins is an experienced criminal law practitioner, and she is passionate about the law, justice and her work in defending the Constitutional rights of the accused. (ECF No. 47, PageID.692.) She was excited about the chance to serve the community, and she started her efforts early in the campaign season, i.e., in November 2019. (ECF No. 47, PageID.693.) According to Plaintiff-Intervenor Beard, petitions were hard to come by during the early months, (ECF No. 17,
2

Case 2:20-cv-10831-TGB-EAS ECF No. 51 filed 05/12/20 PageID.745 Page 9 of 22
PageID.292), but Hawkins persisted. She braved the cold winter, financial difficulties and all the other hardships of grassroots campaigning to give the voters a choice. (ECF No. 47, PageID.693-694.)
By staging an effective grassroots campaign, Hawkins also came closer to clinching a place on the ballot under the normal signature requirements than the original Plaintiff and the intervening Plaintiffs, all of whom are now properly getting relief from the State’s new rules. Although Esshaki started his race at least one month earlier (i.e., October 2019), he collected only approximately 700 of the 1000 signatures necessary. (ECF No. 1, PageID.6.) Plaintiff-Intervenor Savich had approximately 200 of the 400 he needed. (ECF No. 11-1, PageID.184.) Plaintiff-Intervenor Beard came closest with 3557 of the 4000 needed. (ECF No. 17, PageID.293.) Hawkins, however, gathered 4283 signatures – 3885 of which are unchallenged and 231 more that could have been counted under relaxed requirements. (ECF No. 47, PageID.698-699.) But for the pandemic and this State’s Stay-at-Home Orders, Hawkins easily would have qualified for the ballot and would have likely submitted at least 5000 signatures. 2. Extraordinary Statewide Circumstances Disrupt the Campaign, and
State Laws Fail to Adapt. Most of the common problems that yielded a shortfall for the parties are now part of the established common record. Rather than repeating them, Hawkins incorporates them here by reference. The Court correctly concluded in its
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April 20, 2020 Order that in light of the COVID-19 pandemic, “these are not normal times.” (ECF No. 23, PageID.322.) Instead, the extraordinary threat arguably required Defendants to impose widespread lockdown measures that have never been seen in Michigan in our lifetime. “[W]orking closely with health care experts and epidemiologists,” the Governor and State officials surmised that the facts required almost every ordinary and routine activity of daily communal life to come to a complete halt. Gov. Gretchen Whitmer, Governor Whitmer Details Six Phases of Her MI Safe Start Plan May 7, 2020 (available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-528453-,00.html (last accessed May 11, 2020). Each of the plaintiffs’ campaigns here suffered as a result. Moreover, as Defendants maintain, we are not yet beyond the danger or the restrictions. Id.
Our democratic election laws were not built for a stay-at-home, locked down citizenry. Instead, under extraordinary circumstance, the restrictions effectively prevented the parties from gaining access to the ballot. (E.g., ECF No. 47, PageID.695-697.) 3. Proceedings in this Court and the Sixth Circuit
This Court found the normal signature requirements to be a severe burden on the constitutional rights of candidates and their supporters in light of the Stayat-Home Order. Applying strict scrutiny, it struck down the requirements and imposed a remedy to fit the unusual circumstances. Although the Sixth Circuit
4

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affirmed the injunction, it found that this Court did not have the plenary authority to institute its own rules and that the State should have an opportunity to create accommodations before this Court took further action.
On remand, the Court asked Defendants to submit proposed accommodations and gave the parties and amici the opportunity to respond or object. There were two major objections to the State’s proposed accommodations. First, the State offered to reduce the number of signatures required by 30%, and many argued that it should be reduced to 50%. Second, some individuals objected to the proposal that would only allow those who formed their candidate committees by March 10 benefit from the relaxed signature requirement. Amicus ACLU of Michigan argued that the March 10 cutoff was not narrowly tailored or even reasonably related to the articulated state interests of ensuring that (1) only those with a modicum of support would be placed on the ballot, and (2) candidates who did not plan to run for office before the April 20 Order relaxing the signature requirements would not unfairly benefit.
The Court, consistent with the Sixth Circuit’s ruling, declined to order a specific remedy. Nonetheless, it indicated on the record what it thought the State must do to remedy the problem. Specifically, the Court said the State needed to address the problem with the March 10 deadline and it believed that 50% of the signatures was a necessary accommodation for the rules to pass constitutional muster.
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4. The State Refuses to Allow Candidates Who Did Not Create a Candidate Committee Before March 10 to Gain the Benefit of 50% Reduction in Signatures. The next day, on May 8, the Secretary of State posted a “Special An-
nouncement” on its website, at https://www.michigan.gov/sos/0,4670,7-1271633---,00.html. Of the two constitutional problems the Court specifically discussed, the announcement only redressed one: the Secretary of State reduced the signature requirement to 50%. However, the announcement made it clear that the 50% reduction only applied to those candidates who “established a candidate committee under the Michigan Campaign Finance Act by March 10, 2020.”
Notably, this March 10 cutoff (“Arbitrary Campaign Committee Deadline”) does not appear in any Michigan statute, and the Michigan legislature did not pass emergency legislation setting this deadline. Nor did the Governor institute the cutoff by an Executive Order under her emergency powers. Instead, the Secretary of State exercised plenary power by setting the cutoff. 5. Ms. Hawkins Did Not Form Her Candidate Committee Until After
She Submitted Her Signatures. The Michigan Campaign Finance Act is separate from the Michigan Election Law statute that imposes signature requirements. It instructs “candidates” to form a “candidate committee” within 10 days of becoming a candidate, Mich. Comp. Laws § 169.221(1), but the Act mainly defines a “candidate” in terms of fundraising or filing petitions, id. § 1679.203(1), and its purpose is to govern financial matters, not to determine who is a viable political candidate. While a
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person running for office will meet the definition of “candidate” at some point in an election, the Campaign Finance Law specifically recognizes that a person might not be a candidate until they file their petitions. Many grassroots candidates take this approach. Nothing in § 169.221 disqualifies a person from being on the ballot without forming a committee by March 10. (See also ECF No. 50, PageID.713-717.)
According the Michigan Bureau of Elections: An individual does not legally become a candidate under the Michigan Campaign Finance Act until he or she: • Files a fee, Affidavit of Incumbency or nomination petition for elective officer; OR • Is nominated as a candidate for elective office by a political party convention or caucus and certified to the appropriate filing official; OR • Gives consent to someone else to receive a contribution or make and expenditure in an attempt to be nominated or elected to office. See Bureau of Elections Publication, https://mertsplus.com/mertsuserguide/index.php?n=MANUALCAN.TheStatementOfOrganizationFormingAndRegister ingACandidateCommittee#candef. (emphasis added). As of March 10, 2020, Hawkins had not raised campaign money, she had not yet gathered 4000 signatures for her nominating petition to secure a place on the ballot, and she had not consented to have anyone else make an expenditure on her behalf. As far as she knew, she was not officially a “candidate” for
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purposes of campaign finance. Now, as the candidate who worked early and hard to gather more signatures than any other party and to do so without fundraising, she is the lone person who stands to lose her place on the ballot. Preventing Hawkins from gaining the benefit of the relaxed signature requirement based on the arbitrary March 10 deadline for forming a candidate committee and filing a Statement of Organization creates a severe burden on her rights to ballot access and to association.
ARGUMENT 1. Applicable Legal Standards
This Court is familiar with the standards for granting a temporary restraining order or a preliminary injunction. See, e.g., Stein v. Thomas, 222 F. Supp. 3d 539, 542 (E.D. Mich. 2016) (granting TRO in case impacting the right to vote). It recently applied the familiar four-factor test in its April 20, 2020 Order. (ECF No. 23, PageID.329-330.) Especially where, as here, the balance of the harms weighs much more burdensomely and irreparably upon Hawkins, preliminary injunctive relief is appropriate “even where [she] fails to show a strong or substantial probability of ultimate success” so long as she “at least [also] shows serious questions going to the merits.” Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)).
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2. The Court Should Grant Hawkins’s Motion for Injunctive Relief Because Applying the Relaxed Signature Requirements Only to Those Who Formed a Candidate Committee by March 10 is Unconstitutional and the Balance of the Equities Favors Intervening Plaintiff Hawkins.
a. Plaintiff Is Likely to Succeed on the Merits Because Arbitrarily Barring Candidates from Benefiting from the Relaxed Signature Requirements Unless They Formed a Candidate Committee by March 10 is Not Narrowly Tailored – Or Even Rationally Related to – Any State Interests.
This Court and the Sixth Circuit have already recognized that enforcing the
normal signature rules during the pandemic when the Stay-at-Home Orders made it
a misdemeanor to collect signatures in person severely burdens fundamental First
and Fourteenth Amendment rights.1 The Court and the Sixth Circuit have further
recognized that the appropriate standard to apply here is strict scrutiny. Thus, the
question for the Court is whether precluding people running for office from
1 E.g., ECF No. 23, PageID.331-332: “While there is no fundamental right to run for elective office, the Supreme Court has recognized that ballot access laws such as Sections 168.133 and 168.544f “place burdens on two different, although overlapping, kinds of rights – the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Ballot access restrictions affect candidates and individual voters alike because absent recourse to state-wide proposals or referenda, “voters can assert their preferences only through candidates or parties or both.” Lubin v. Panish, 415 U.S. 709, 716 (1974). “By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). As the Supreme Court explained in the seminal ballot access case of Anderson v. Celebrezze, 460 U.S. 780, 786 (1983), “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical correlative effect on voters.” (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
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obtaining the benefit of the new 50% signature requirement is narrowly tailored to advancing a compelling state interest.
The State has asserted two interests during these proceedings when justifying the March 10 cutoff: (1) ensuring that only individuals who have a modicum of support reach the ballot, and (2) preventing individuals who were not planning to run for office from launching a new run only by being able to take advantage of the new accommodations. As established below, even assuming these two interests are compelling, the means chosen to advance them are not narrowly tailored and flunk strict scrutiny.
1. The March 10 Cutoff Is Not Narrowly Tailored to Advancing the Interest of Ensuring that Only Candidates with a Modicum of Support Appear on the Ballot.
As this Court noted in its April 20 order, states have “an important interest in ensuring that candidates demonstrate a ‘significant modicum of support,’ before gaining access to the ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.” (ECF No. 23, PageID.343 (quoting Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016)).)
Given that the state of Michigan allows about half the candidates for state office to qualify by paying $100,2 it is not clear that this interest is compelling. But
2 Many candidates for office have the option of dispensing with signature-gathering altogether by paying a $100 fee. Those candidates include for the following offices: Both houses of the state legislature (M.C.L. § 168.163); all county offices, including
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even assuming that it is, the March 10 cutoff clearly is not the least drastic means to achieve the interest. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979) (A state must utilize “the least drastic means” to achieve its electoral interests, with this tailoring requirement being “particularly important where restrictions on access to the ballot are involved.”).
For those candidates who are not allowed to qualify for the ballot by paying $100, support is established by gathering a certain number of signatures. Under the state’s “special announcement” of May 8, the number of signatures that indicate a modicum of support for Wayne County Circuit Court is 2000 or 50% of the statutorily mandated 4000 signatures. Indeed, another intervenor, Ms. Beard, who is running for the same offer, need only submit 2000 valid signatures. Ms. Hawkins submitted approximately 4283 signatures on April 21, 2020, and just under 4000 are valid. (ECF No. 47, PageID.698.) Clearly, she has a modicum of support.
Indeed, if the only state interest at issue were the modicum of support, it would not matter when candidates collected their signatures. A candidate could conceivably decide to run for office five days before the deadline, collect twice the number of signatures in four days, and submit them by the deadline. The fact that the
County Clerk, County Treasurer, Registrar of Deeds, Prosecutor, Sheriff, Drain Commissioner, Surveyor, and Coroner (M.C.L. § 168.193); County Road Commissioner (M.C.L. § 168.254); School Board (M.C.L. § 168.303), and any Township Office (M.C.L. § 168.349).
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candidate had not yet formed a candidate committee has absolutely no bearing on the candidate’s modicum of support. In short, March 10 cannot be used as a proxy for level of support or whether a candidate is a serious candidate.
2. The March 10 Cutoff Is Not Narrowly Tailored to Advancing Any State Interest in Ensuring that Only Individuals Who Were Serious Candidates Before the Relaxed Signature Requirements Were Imposed Gained the Benefit of the New Rules.
At oral arguments in this matter, the State has asserted an interest in not allowing candidates who were not serious about running before the pandemic to somehow obtain an unfair windfall by jumping into a race after the relaxed signature requirement was in place. In other words, the State wants to prevent “Johnny-comelatelies” from unfairly benefiting from the accommodation. Even assuming that this interest is compelling, the means chosen to advance it are not narrowly tailored.
First, the premise of the argument is false. The idea that it is somehow easier to collect 2000 signatures during the middle of a pandemic than it is to collect 4000 signatures in person during normal times is contradicted by the record. (See ECF Nos. 15-2, 35-1 and 42-2: Decls. of Anne Bannister, Dennis Donahue and Stephanie Witucki.)
Second, the earliest any office seeker could have known that there would be a relaxed signature requirement was this Court’s preliminary injunction order on April 20, 2020 -- one full month after the State’s March 10 cutoff for forming a candidate
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committee. An office-seeker cannot possibly take advantage of a relaxed signature requirement after-the-fact until she knows about it.
Third, Ms. Watkins was a serious candidate long before March 10. In fact, she collected approximately 3000 signatures by March 10 – which, under the newly announced rules on Friday, is 150% of the number she needed to qualify for the ballot. There is no doubt that she was a serious candidate, not a “Johnny-come-lately.”
At oral argument on Thursday, counsel for the State said that the March 10 cutoff for forming a candidate committee was rational because that was when the Governor declared a state of emergency. Apparently, candidates should have known that they should gather all their signatures quickly before a possible Stay-at-Home Order. However, that argument was already made and rejected by this Court in the context of the preliminary injunction motion.
Defendants contend that Governor’s March 10, 2020 State of Emergency Declaration “should have acted as a wake-up call to Plaintiff and his stat to double down on signature collection efforts” before the March 23, 2020 Stay-at-Home Order. ECF No. 6, PageID111. This argument both defies good sense and flies in the face of all other guidance that the State was offering citizens at the time. Order Granting Preliminary Injunction, ECF No. 23, PageID.336. In short, the March 10 cutoff for forming a candidate committee is not narrowly tailored to advancing any of the State’s asserted interests and therefore it flunks strict scrutiny.
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As a result, Plaintiff Intervenor Hawkins is highly likely to succeed on the merits of her challenge.
b. Hawkins’s Constitutional Injury is Presumed to be Irreparable Harm. Unless this Court acts quickly to enjoin the enforcement of the arbitrary March
10 cutoff for forming a candidate committee, Plaintiff will suffer a loss of her fundamental right of access to the ballot. As the Court has already noted, when fundamental rights are violated, such as a candidate’s access to the ballot, irreparable harm can be presumed. (ECF No. 23, PageID.347.)
c. The Harm to Other Parties and the Public Interest Favor an Injunction. Finally, while the State has the same interest in vindicating its laws as it did
in the Court’s first Order, neither applies to Hawkins or meaningfully supports the arbitrary March 10 cutoff. (Id. PageID.347-351.) In fact, there is no Michigan statute that has a March 10 cutoff for forming a candidate committee. Defendants made up the date without any legislative authority. It appears to have no basis in law and to be ultra vires.
No public interest weighs against an injunction. Hawkins is a viable candidate who enjoys more than a modicum of support. She started her efforts in November 2019 to get on the ballot, walked “the turf” during the cold winter months to gather signatures, and enlisted a dedicated group of volunteers to seek signatures on her behalf. She is not a “Johnny-come-lately” trying to take advantage of relaxed
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signature requirements after they have been imposed. For the same reasons the Court

articulated in its April 20, 2020 Order, the balance weighs strongly in favor of in-

junctive relief here. (Id.)

CONCLUSION

For each of these reasons, Hawkins respectfully asks the Court to enter a TRO,

a preliminary injunction and a permanent injunction barring Defendants from en-

forcing or applying their arbitrary March 10 cutoff for forming a candidate commit-

tee or otherwise denying her access to the same accommodations they made availa-

ble for the other parties in this case.

Respectfully submitted,

May 12, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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CERTIFICATE OF SERVICE

I hereby certify that on May 12, 2020, I electronically filed the foregoing pa-

per and attached exhibits with the Clerk of the Court using the ECF system, which

will send notification and copies of these filings to all counsel of record.

Respectfully Submitted,

May 12, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu (P69627) Saura J. Sahu Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

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 Case 2:20-cv-10831-TGB-EAS ECF No. 54 filed 05/14/20 PageID.762 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and his Individual capacity,
Plaintiff,
VS.
GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official Capacities,
Defendants.

Case no. 2:20-cv-10831-TGB-EAS

Hon Judge:

Terrence G. Berg

Hon Magistrate: Elizabeth A. Stafford

DANIEL FINLEY’S RESPONSE TO MOTION FOR TRO - #51
For his RESPONSE, Daniel P. Finley states: 1. Finley concurs with Plaintiff Hawkins’ motion for a TRO, because there presently is no
signature or March 10th requirement for the reasons more fully stated herein. 2. There has been much briefing and discussion regarding this Court’s initial ruling and the
ruling from the Sixth Circuit. Both this Court and the Sixth Circuit held that the Defendant’s signature requirement was unconstitutional given the pandemic. Despite discussions of dates and amounts of signatures and how to get the signatures, it is indisputable that the signature requirement is unconstitutional.

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3. As it relates to the parties and others that have appeared in this case, there is no signature requirement, nor a March 10th cutoff requirement.
4. What is needed now is clear and unambiguous order from the Court as it relates to the parties, amicus curiae, others that have been referenced herein, that there is no signature requirement and that all persons that have submitted themselves as candidates herein be placed upon their respective ballots.
5. The Sixth Circuit, entered a May 5, 2020 Order upholding the core of the injunction, which enjoins the State from enforcing the statute’s two ballot-access provisions at issue unless the State provides some reasonable accommodation to aggrieved candidates. The State (which would be the Legislative branch) has done nothing, and the Defendants do not have the power or authority to modify any of the requirements; therefore, the statute as applied herein remains unconstitutional; hence, no signature requirement.
6. Just as the Sixth Circuit indicated that it was improper for this Court to re-write the Michigan statute, so too is it improper for Defendant Michigan Secretary of State, an administrative body, to re-write the Michigan ballot access provisions – only the Michigan legislature can re-write the statute.
7. The ballot-access provision at-issue, that were declared unconstitutional as applied under the circumstances, MCL 168.33, and 168.544f, do not contain any express provision that would permit the Secretary of State to re-write those statutes.
8. Likewise, Defendant Governor does not have the authority to re-write the ballot access provisions of the statute under her emergency powers, either under Article 5 Section 1 of the Michigan Constitution nor under the Emergency Management Act of 1976, MCL
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30.403, because the unconstitutional application of the ballot access provisions under the present circumstances is not necessary to preserve life and property. 9. For these reasons Finley recommends that the Court enter an Order, as it relates to the parties, amicus curiae, others that have been referenced herein, that there is no signature requirement and that all persons that have submitted themselves as candidates herein be placed upon their respective ballots.

Date: May 14, 2020

Respectfully submitted, FINLEY LAW FIRM By: /s/ Daniel P. Finley Daniel P. Finley (P65454) Attorney for and Amicus Curiae 300 N. Main St, Ste 6 Chelsea, MI 48118 Ph. (734) 475-4659; Fx. (734) 475-4672 dpfinleyesq@comcast.net

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CERTIFICATE OF SERVICE On May 14, 2020, this paper was filed electronically through the Court’s CM/ECF filing system, which will give notice and copy all parties or attorneys of record. There does not appear to be any non-ECF filers on this case.

Date: May 14, 2020

Respectfully submitted, FINLEY LAW FIRM By: /s/ Daniel P. Finley Daniel P. Finley (P65454) Attorney for and Amicus Curiae 300 N. Main St, Ste 6 Chelsea, MI 48118 Ph. (734) 475-4659; Fx. (734) 475-4672 dpfinleyesq@comcast.net

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 Case 2:20-cv-10831-TGB-EAS ECF No. 55 filed 05/15/20 PageID.766 Page 1 of 27

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-cv-10831 HON. TERRENCE G. BERG

Plaintiff, and

MAG. ELIZABETH A. STAFFORD

MATT SAVICH, DEANA BEARD, and SHAKIRA L. HAWKINS,
Intervenors-Plaintiffs, v

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of state of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. ______________________________________/ Gregory J. Rohl (P39185) Attorney for Plaintiff 41850 W. Eleven Mile Road, Suite 110 Novi, Michigan 48375 248.380.9404

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

Case 2:20-cv-10831-TGB-EAS ECF No. 55 filed 05/15/20 PageID.767 Page 2 of 27
Michael S. Cafferty (P36613) Attorney for Intervenor-Plaintiff Savich 333 West Fort Street, Suite 1400 Detroit, Michigan 48226 313.964.3070 Deana Beard, In Pro Per Intervenor-Plaintiff 2885 South Trenton Drive Trenton, Michigan 48183 734.502.7411 Saura J. Sahu (P69627) Attorneys for Intervenor-Plaintiff Shakira L Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 734.780.7595
DEFENDANTS’ RESPONSE TO INTERVENING PLAINTIFF HAWKINS’ MOTION FOR TRO/PRELIMINARY INJUNCTION
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TABLE OF CONTENTS Page
Table of Contents ....................................................................................................... i Index of Authorities .................................................................................................. ii Concise Statement of Issues Presented .................................................................. ivv Controlling or Most Appropriate Authority........................................................... ivv Introduction ................................................................................................................1 Statement of Facts......................................................................................................1 Argument....................................................................................................................6 I. Plaintiff’s motion for temporary or preliminary injunctive relief
should be denied where balancing the requisite factors weighs against granting an injunction. .....................................................................................6 A. Temporary or preliminary injunction factors........................................6 B. Plaintiff has not shown a strong likelihood of success on the
merits of her claim that the statement of organization requirement is unconstitutional as applied to her..................................7 C. Plaintiff has not shown she will suffer irreparable harm absent an injunction. .......................................................................................17 D. The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest.........................................19 Conclusion and Relief Requested ............................................................................20 Certificate of Service ...............................................................................................21
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INDEX OF AUTHORITIES Page
Cases Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) ...............................................18 American Party of Texas v. White, 415 U.S. 767 (1974).........................................16 Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................. 13, 14 Bullock v. Carter, 405 U.S. 134 (1972) ...................................................................13 Burdick v. Takushi, 504 U.S. 428 (1992).................................................................14 Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535
(6th Cir. 2007) ......................................................................................................17 Cf. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442 (6th Cir.
2009) .......................................................................................................................6 Citizens for Legislative Choice v. Miller, 144 F.3d 916 (6th Cir. 1998) .......... 13, 14 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................18 Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) ...................18 Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533 (6th Cir. 2014) ...........14 In re De Lorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)......................................6 Jenness v. Forton, 403 U.S. 431 (1971) ..................................................................16 Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F. Supp.2d 853 (S.D.
Ohio 2008)..............................................................................................................6 Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000)....................................................6 Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016)...........................16 Maryland v. King, 133 S. Ct. 1 (2012) ....................................................................19 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).........................................16 NEOCH v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .................................................7
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New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..........19 Nken v. Holder, 556 U.S. 418 (2009) ......................................................................19 Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016) .........14 Ohio Republican Party v. Brunner, 543 F.3d 357 (6th Cir. 2008)............................7 Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566 (6th Cir.
2002) .....................................................................................................................18 Stenberg v. Cheker Oil Co., 573 F.2d 921 (6th Cir. 1978)........................................6 Summit County Democratic Cent. & Exec Comm. v. Blackwell, 388 F.3d 547
(6th Cir. 2004) ........................................................................................................7 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ..............................16 Williams v. Rhodes, 393 U.S. 23 (1968) ..................................................................14 Statutes Mich. Comp. Laws § 168.544f ....................................................................... v, 1, 16 Mich. Comp. Laws § 168.737a ................................................................................17 Mich. Comp. Laws § 169.203(1) .............................................................................10 Mich. Comp. Laws § 169.206(1) .............................................................................10 Mich. Comp. Laws § 169.221........................................................................... 10, 11 Mich. Comp. Laws § 169.221(13) ...........................................................................10 Mich. Comp. Laws § 169.224(1) ...................................................................... 10, 11 Mich. Comp. Laws § 169.221..................................................................................12
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether Plaintiff Hawkins’ motion for temporary or preliminary
injunctive relief should be denied where she has failed to satisfy the requirements for granting such extraordinary relief? CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.544f Anderson v. Celebrezze, 460 U.S. 780 (1983) Burdick v. Takushi, 504 U.S. 428 (1992) Elrod v. Burns, 427 U.S. 347 (1976) Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016) Maryland v. King, 133 S. Ct. 1 (2012) Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016)
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INTRODUCTION Plaintiff Hawkins asks this Court to enjoin the State Defendants from
enforcing the limitation that only candidates who filed statements of organization
on or by March 10, 2020, are entitled to the 50% signature reduction. For the
reasons set forth below, Defendants ask this Court to deny Plaintiff’s motion.
Alternatively, if the Court determines that Plaintiff is entitled to relief, any
injunction should be limited to Plaintiff Hawkins and her specific facts.
STATEMENT OF FACTS This Court is familiar with the facts of this case. Defendants thus recount
only those facts necessary to address Plaintiff Hawkins’ motion.
On April 20, 2020, this Court entered a preliminary injunction that included
as part of the relief granted an extension in the filing deadline for nominating
petitions and a reduction in the number of signatures required under Mich. Comp.
Laws § 168.544f. The Court ordered “that all candidates”:
(i) who filed a statement of organization under the Federal Election Campaign Act of 1971, 52 U.S.C. §§ 30101 et seq., or established a candidate committee under the Michigan Campaign Finance Law, Mich. Comp. Laws §§ 169.201 et seq., before March 10, 2020; and (ii) who are required by a relevant section of the Michigan Election Law, Mich. Comp. Laws §§ 168.1 et seq., to file a nominating petition by April 21, 2020, for the purpose of appearing on the August 4, 2020, primary election ballot; and (iii) who do not have the option under Michigan Election Law to appear on the August 4, 2020, primary election ballot through the payment of a filing fee in lieu of filing a nominating petition;
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Shall be qualified for inclusion on the August 4, 2020 primary election ballot if the candidate submits fifty percent of the number of valid signatures required by Mich. Comp. Laws § 168.544f with the appropriate filing official as provided by Michigan Election Law by 5:00 p.m. on May 8, 2020. No other filing deadline is extended under this Order. [R. 23, Injunction Order, Page ID # 359-360 (emphasis added).] The Court further ordered Defendant Director of Elections to implement, within 72 hours, a process “providing for an additional optional procedure that allows the collection and submission of ballot petition signatures in digital form by electronic means such as email.” (Id., Page ID # 360.) As entered, the Court’s order applied to the offices of U.S. Senate, U.S. Congress, Wayne County Community College (WCC) Trustee, all judicial offices (but only for candidates who are not the current incumbent), and any city office where the city charter does not allow the option to file with a fee. The order also applied to candidates within the covered offices who filed nominating petitions prior to the court’s issuance of the injunction. In other words, candidates who timely established committees and who filed nominating petitions early and met the minimum signature filing threshold would have until May 8, 2020 to supplement their filings and would be subject to the 50% signature reduction. On April 21, 2020, the State Defendants filed a notice of appeal to the Sixth Circuit. On April 22, 2020, the State Defendants filed in this Court a limited motion for relief from the injunction under Rule 60(b)(2), and alternatively argued
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for a stay pending appeal regarding the 50% signature reduction. (R. 26, Defs Mtn to Stay, Id., Page ID # 365.) On April 25, 2020, the Court issued an order denying
Defendants’ limited motion for relief from the injunction order, and further denied Defendants’ request for a stay pending appeal. (R. 37, Stay Order, Page ID # 575.)
On April 26, 2020, the State Defendants filed an emergency motion for stay
pending appeal in the Sixth Circuit, requesting that the Court stay that portion of this Court’s order imposing the 50% signature reduction. (20-1336, R. 11, Defs Emrgy Mtn, Page ID # 8, 43.)
Late in the day on May 5, 2020, the Sixth Circuit entered an order granting
in part and denying in part the State Defendants’ emergency motion for a stay. (20-1336, R. 21-2, Stay Order, Page ID # 1.) Specifically, the Court ordered:
[W]e GRANT the motion in part and issue the stay as to the portion of the preliminary injunction compelling the State to adopt the district court’s revisions of the ballot-access provisions, but we DENY the remainder of the motion and uphold the portion of the injunction that enjoins the State from enforcing the statute’s two ballot-access provisions under the present circumstances, unless the State provides some reasonable accommodation to aggrieved candidates. [Id., Page ID # 4.] “By staying the compulsory part of the injunction but upholding the prohibitive part we are instructing the State to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest,
and thereby render the application of the ballot-access provisions constitutional under the circumstances.” (Id., Page ID # 3-4.) The Sixth Circuit noted, however,
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that the State Defendants could choose to adopt the same relief this Court ordered. (Id., Page ID # 3.)
Early in the day on May 6, 2020, this Court entered an order directing the State Defendants to submit their proposed reasonable accommodation by 5:00 p.m. In compliance with this Court’s order and consistent with the Sixth Circuit’s order, the State Defendants submitted a proposed amendment to the April 20, 2020, injunction. (R. 38 & 39, Defs Prop Am.) Defendants proposed that the signature reduction be reduced to 30% and that the filing deadline be moved from May 8 to May 11, 2020, to accommodate that change. (Id.) Defendants did not propose any additional amendments. The Court permitted the parties and amici to file objections to Defendants’ proposed amendment. (See R. 40, Finley; R. 42, ACLU; R. 44 Beard.) Plaintiff Hawkins appeared as a declarant in the ACLU’s objection to challenge Defendants’ proposed continued application of the injunction’s March 10, 2020, deadline for having filed a statement of organization in order to qualify for the signature reduction. (R. 42, ACLU, Ex B, Hawkins Dec.)
The Court held a lengthy hearing near the end of the business day on May 7, 2020, during which it expressed strong disagreement with Defendants’ proposed 30% reduction and questioned continuing the requirement that candidates have filed statements of organization by March 10. But the Court then determined it would issue no order amending the terms of the April 20 injunction, instead
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instructing Defendants from the bench to immediately implement whatever accommodation they determined appropriate.
Given that Defendants had lost two business days during which it could have issued new instructions, and the Court’s indication that it found Defendants’ proposed reduction unreasonable, Defendants were constrained to adopt the terms of the April 20 injunction order. Thus, the filing deadline elapsed at 5:00 p.m. on May 8, 2020 for candidates seeking to qualify with a 50% reduction in signatures.
Plaintiff Hawkins thereafter filed an emergency motion to intervene in this case in order to challenge Defendants’ continuation of the requirement that state candidates file a statement of organization on or by March 10 in order to qualify for the signature reduction and extended filing deadline. (R. 47, Hawkins Mtn to Intrvne., Page ID # 672.) The Court ordered Hawkins to file a supplemental brief in support of her intervention, which she did. (R. 49, Hawkins Supp Brf.) On May 12, 2020, Hawkins filed a motion for temporary or preliminary injunctive relief. (R. 51, Hawkins TRO Mtn.) On May 13, 2020, the Court granted the motion to intervene, (R. 52, Order,) and ordered that responses to the injunction motion be filed by May 15, and noticed a hearing for May 18, (R. 53, Notice.)
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ARGUMENT I. Plaintiff’s motion for temporary or preliminary injunctive relief should
be denied where balancing the requisite factors weighs against granting an injunction. A. Temporary or preliminary injunction factors. Like a preliminary injunction, a temporary restraining order is an extraordinary remedy “designed to preserve the relative positions of the parties until a trial on the merits can be held.” Cf. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). A court considers “four factors when determining whether to grant a temporary restraining order: ‘(1) whether the movant has a “strong” likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of [a TRO] would cause substantial harm to others; and (4) whether the public interest would be served by issuance of [a TRO].’ ” Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F. Supp.2d 853, 860 (S.D. Ohio 2008) (quoting Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)). No one factor is dispositive; rather the court must balance all four factors. In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). The burden of persuasion is on the party seeking the injunctive relief. Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978).
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B. Plaintiff has not shown a strong likelihood of success on the merits of her claim that the statement of organization requirement is unconstitutional as applied to her.
The Sixth Circuit has long held that in determining whether to grant an

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).

As the Court is aware, Defendants initially proposed the March 10 statement

of organization requirement as a mechanism to preclude “would-be” candidates

who might attempt to jump into a race after the original April 21 filing deadline

and obtain any relief that was intended to protect bona fide candidates. Indeed, at

the time Defendants proposed this limitation it remained a possibility that the

Court would completely enjoin the signature requirement. Defendants were also

concerned with the administrative effect that a large number of late filings might

have on the many subsequent deadlines that attach to holding the August primary.

Again, the relevant deadlines for the August primary include:

Date and Time By 4:00 p.m. on April 21 (extended to 5:00 p.m. on May 8 for eligible candidates)

Action Candidates for partisan office must file nominating petitions and Affidavit of Identity for the August Primary

Statute MCL 168.133

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April 28 (extended to May 15 with respect to candidates eligible to file on May 8) June 2 (statutory deadline, the Board is expected to meet May 29)
June 5
June 20
June 20
June 25
By 4:00 pm on July 24 August 4

Deadline to submit challenges against nominating petitions filed by partisan candidates to filing official
Board of State Canvassers to complete canvass of petitions filed by candidates for the August Primary; Secretary of State certifies candidates eligible to appear on August primary ballot to county election commissions. Approximate date county clerks will begin printing ballots for the August Primary Delivery of military and overseas AV ballots must begin Deadline for county clerks to deliver AV ballots for the August Primary to local clerks Deadline for AV ballots to be made available to voters Write-in candidates file Declaration of Intent form State Primary

MCL 168.552
MCL 168.552
MCL 168.759a MCL 168.714 Mich. Const., Art. 2 § 4 MCL 168.737a

As it turned out, of the 151 candidates who filed nominating petitions with the Bureau of Elections (either by April 21 or by May 8), 17 candidates filed less than the statutory minimum number of signatures but met (or exceeded) the 50% requirement. Of the 17 candidates, 16 qualified for the signature reduction and extended deadline. The remaining candidate did not form her candidate committee until April 20 (the day of the injunction) and did not file her statement of

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organization until May 12. This last candidate is plainly an example of someone seeking to take advantage of the circumstances.
Like Plaintiff Esshaki, Plaintiff Hawkins timely filed her nominating petition and exceeded the statutory minimum signature threshold; filing 4,283 signatures on April 21, or 283 signatures over the statutory minimum.1 However, after face review by the Bureau of Elections and as a result of a challenge by another candidate, she only has 3,847 face valid signatures. Plaintiff submitted a supplemental filing of approximately 323 signatures on May 8, which technically she was not permitted to do as a candidate who does not qualify for the reduction and extended filing deadline. Those signatures have not been reviewed for their validity.
Plaintiff asserted that she began collecting signatures in November 2019, which the Bureau of Elections has confirmed after a review of Plaintiff’s petition sheets. She collected two dozen signatures in November and December 2019, with the majority of her signatures collected in February 2020 or somewhat later.
Under the Michigan Campaign Finance Act (MCFA), a person may become a candidate in a number of ways, relevant here:
(1) “Candidate” means an individual who meets 1 or more of the following criteria:
1 See also, August 4, 2020, Primary Candidate listing, https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html.
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(a) Files a fee, an affidavit of incumbency, or a nominating petition for an elective office.
*** (c) Receives a contribution, makes an expenditure, or gives consent for another person to receive a contribution or make an expenditure with a view to bringing about the individual's nomination or election to an elective office . . . Mich. Comp. Laws § 169.203(1) (emphasis added). A person becomes a candidate as soon as he or she meets one of these criteria. For purposes of § 203(1)(c), the term “expenditure” is defined to mean “a payment, donation, loan, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate. . . .” Mich. Comp. Laws § 169.206(1). An “ ‘[i]n-kind contribution or expenditure’ means a contribution or expenditure other than money.” Mich. Comp. Laws § 169.209(4). Once a person becomes a candidate, he or she is required to “form” a candidate committee within 10 days. Mich. Comp. Laws § 169.221(1). A person who fails to do so “is subject to a civil fine of not more than $1,000.00.” Mich. Comp. Laws § 169.221(13). The person’s candidate committee is then required to “file a statement of organization within 10 days after the committee is formed.” Mich. Comp. Laws § 169.224(1). A person who fails to timely file a statement of organization “shall pay a late filing fee of $10.00 for each business day the statement remains not filed in violation of this subsection” up to $300.00. Mich.
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Comp. Laws § 169.224(1). A person who violates this subsection “by failing to file for more than 30 days after a statement of organization is required to be filed is guilty of a misdemeanor punishable by a fine of not more than $1,000.00.” (Id.)
Under §§ 221 and 224, candidates have at least 20-days after becoming a candidate to file the candidate committee’s statement of organization. During that period, a candidate is expected to establish an official depository and designate a person who is registered to vote in Michigan as the committee’s treasurer (a candidate may also serve as the committee treasurer). Mich. Comp. Laws § 169.221.2
As noted above, Plaintiff Hawkins began collecting signatures in November 2019. Under the MCFA, she became a candidate if she expended any money at all to make copies of petitions to circulate. Thus, it appears that Hawkins should have created a committee and filed a statement of organization well before March 10, 2020, and certainly before May 6, 2020.3 Indeed, Plaintiff acknowledged that she “probably committed a technical violation of the” MCFA in failing to do so. (R. 59, Hawkins Supp Brf, Pg ID # 714.) But a violation is a violation, and the penalty
2 The Secretary of State’s candidate committee guide explains this process, see https://mertsplus.com/mertsuserguide/index.php?n=MANUALCAN.TheStatement OfOrganizationFormingAndRegisteringACandidateCommittee#candef. 3 Plaintiff’s MCFA filing information is available at https://cfrsearch.nictusa.com/committees/519728.
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includes a potential combined civil fine of $2,000.4 Had Hawkins timely and lawfully created her committee and filed her statement of organization, she would be eligible for the signature reduction and delayed filing deadline.
Defendants acknowledge that a fair point was raised during prior hearings that a person may have become a candidate shortly before or even on March 10, but would not have had to file his or her statement of organization for at least 20 days under the MCFA. Mich. Comp. Laws §§ 169.221, 169.224. In other words, the candidate’s statement of organization would not have been due for filing until potentially March 30, 2020. But here Plaintiff did not file her statement of organization by that date either.
The other parties to this case and the Court have recognized that the State has an important interest in limiting the extraordinary relief that has been provided in the context of this case to bona fides candidates. And not to relieve individuals seeking to take advantage of the pandemic and the special relief provided as a result of the unique circumstances. From an administrative standpoint the State was (and is) concerned with a potential rush of late candidate filings for the Bureau of Elections and local clerks to process that otherwise would not have occurred. The State Defendants continue to believe that the simplest and least subjective way
4 Defendants are aware that candidates sometimes choose not to timely file their statements of organization and risk the imposition of fines under the MCFA for alleged “strategic” reasons. But the reason does not make it any less of a violation.
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to advance these interests is to rely on a candidate’s committee filing at the Federal Election Commission, at the state Bureau of Elections, or at the county clerk’s office. And as far as choosing a date by which to have filed a statement of organization, any date may be perceived as arbitrary by someone to whom it does not advantage. Here, the State Defendants proposed March 10—the day the Governor first declared a state of emergency due to Covid-19—as the date by which bona fides candidates would have filed their statements of organization. By that date, the experiences of other countries and the national and state headlines, including stories about lock-downs and stay-at-home orders, should have spurred candidates to action.
Applying the March 10 filing deadline to Plaintiff Hawkins is not unconstitutional. While Plaintiff has no fundamental right to run for an elective office, see, e.g., Bullock v. Carter, 405 U.S. 134, 142-43 (1972) (no “fundamental right to run for elective office”), and “[a] voter has no right to vote for a specific candidate,” Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (citations omitted), candidate qualifications nevertheless implicate “‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’” Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983) (quoting
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Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). These rights are protected by the First and Fourteenth Amendments. Id.
To assess candidate eligibility requirements, courts apply the AndersonBurdick analysis from Anderson and Burdick v. Takushi, 504 U.S. 428 (1992). Citizens for Legislative Choice, 144 F.3d at 920. If a state imposes “severe restrictions” on a plaintiff’s constitutional right, 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).
First, it is not entirely clear that the Sixth Circuit stayed this portion of the Court’s injunction, as it only stayed the “compulsory” relief, which it described as the extended filing deadline, the signature reduction, and the email signature
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gathering option. If the March 10 limitation is not stayed, then Plaintiff is attempting to disturb the terms of a weeks-old injunction that has applied across the board to impacted federal, state, and local candidates. But even if it is stayed, the limitation was all part of the order that the Sixth Circuit reviewed, and the panel expressed no concern with this limitation. Further, the majority opinion very clearly stated that it was the State Defendants’ first right to “select its own adjustments so as to reduce the burden on ballot access.” (20-1336, R. 21-2, Stay Order, Page ID # 3.) Even under the present circumstances, the State is not required to eliminate the burden and allow any candidate who wants ballot access to have it. Candidates fail to qualify for the ballot in every election for any number of reasons, including the failure to collect sufficient valid signatures, and their failures present no constitutional crisis.
While Plaintiff Hawkins, as someone who timely filed her petition and met the minimum signature threshold at the time of filing, is not necessarily the target of the limitation, the State Defendants proposed that a hard line be drawn with respect to who should benefit from the extraordinary relief provided here. Drawing the line based upon a statutory requirement that applies to all candidates and tethering it to a date that bears a rational relationship to the purpose of the limitation is not arbitrary, unreasonable, or unconstitutional. If Plaintiff, a lawyer and judicial candidate, had simply complied with the law during the four months
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she was actively circulating petitions before March 10, she would be eligible for the signature reduction.
The State Defendants have an interest in limiting the number of candidates gaining ballot access under a significantly reduced signature requirement. With respect to signature requirements like Mich. Comp. Laws § 168.544f, the Supreme Court has consistently recognized that states, like Michigan, have an important interest in requiring some preliminary showing of a significant modicum of support before printing the name of a candidate on the ballot; this protects the integrity of the electoral process by regulating the number of candidates on the ballot and avoiding voter confusion. See Jenness v. Forton, 403 U.S. 431, 441 (1971); American Party of Texas v. White, 415 U.S. 767, 783 (1974); Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997). The Sixth Circuit has likewise recognized that states have “an important interest in ensuring that candidates demonstrate a ‘significant modicum of support,’ before gaining access to the ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.” Libertarian Party of Ky v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016). Section 544f advances that important interest in Michigan by requiring potential candidates to demonstrate they have a significant modicum of public support for their
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candidacies through signature thresholds. And allowing candidates to access the ballot without meeting the requisite thresholds defeats that interest.
Finally, while perhaps not her first choice, Plaintiff could still choose to run as a write-in candidate for the August Primary, which requires no signatures, can be accomplished by mail, and is not due until July 24, 2020. Mich. Comp. Laws § 168.737a. Or she can simply run as a write-in candidate for the November 2020 general election. (Id.) Write-in candidacies have been successful in Michigan, for example, Mike Duggan became Mayor of the City of Detroit through a successful write-in primary campaign in 2013.5 And Winnie Brinks won the Democratic Primary for State Representative in 2012.6
Under the circumstances, denying Plaintiff access to the ballot under the reduced signature threshold is not unconstitutional.
C. Plaintiff has not shown she will suffer irreparable harm absent an injunction.
In considering issuing an injunction, courts must consider whether the plaintiff will suffer irreparable injury without the injunction. Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). “To demonstrate irreparable harm, the plaintiffs must show that . . . they will suffer
5 See, https://www.michiganradio.org/post/duggan-makes-history-winning-writecampaign-napoleon-rallies-supporters. 6 See, https://calvinchimes.org/2012/11/05/2369/.
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actual and imminent harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). Harm is irreparable if it cannot be fully compensated by monetary damages. Overstreet v. LexingtonFayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir. 2002). Irreparable harm may also exist where a plaintiff can demonstrate a substantial likelihood of success on the merits of the plaintiff’s claim that his or her constitutional right has or will imminently be violated. Elrod v. Burns, 427 U.S. 347, 373-74 (1976).
Plaintiff Hawkins asserts that without an injunction “she will suffer the loss of her fundamental right of access to the ballot.” (R. 51, Hawkins TRO, Page ID # 756.) But there is no fundamental right to ballot access. Even so, irreparable harm only exists if Plaintiff has demonstrated a likelihood of success on the merits of her constitutional claims, which, as argued above, she has not. And 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).
But if the Court disagrees with Defendants and concludes that Plaintiff has shown a substantial likelihood of success on the merits of her claim, the Court should limit its grant of injunctive relief to Plaintiff Hawkins and her specific facts.
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D. The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest.
The remaining factors, “harm to the opposing party and weighing the public interest . . . merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiff challenges the application of the March 10 deadline for having filed a statement of organization in order to qualify for the reduction from the statutory signature requirement. The people of Michigan have a strong interest in having the State’s election laws effectuated, including § 544f, to the extent it can be under the circumstances. See 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 State Defendants are also concerned about Plaintiff’s request to “change the rules” at this late date. The Bureau of Elections, all local clerks, and all candidates for the August primary have been operating under or following this condition since April 20, 2020. The extended filing deadline elapsed at 5:00 p.m. on May 8, and the deadline for candidates to challenge their competitors’ signatures elapses today, May 15. The Board of State Canvassers is expected to meet to certify the August primary ballot on May 29, 2020 (certification must be done by June 2). Between now and May 27—12 days—the Bureau of Elections must complete the canvass of the nominating petitions filed by the 151 candidates, review and resolve any challenges filed by other candidates, and prepare staff reports regarding the
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sufficiency of the nominating petitions for disclosure to the public. See Mich. Comp. Laws § 168.552(8)-(11). Local clerks will be following a similar process. See Mich. Comp. Laws § 168.552(1)-(7).
If the Court eliminates the March 10 filing requirement, it could open the door to other individuals seeking to file late petitions at the state or local level. New filings, which would require canvassing and a challenge period, could and likely would disrupt the already shortened timetable for the canvassing and certification process. For this reason, if the Court determines that Plaintiff Hawkins is entitled to relief, the Court should limit its grant of injunctive relief to Plaintiff Hawkins and her specific facts.
CONCLUSION AND RELIEF REQUESTED For the reasons stated above, Defendants Secretary of State Jocelyn Benson, Governor Gretchen Whitmer and Director of Bureau of Elections Jonathan Brater respectfully request that this Honorable Court deny Plaintiff’s request for temporary or preliminary injunctive relief.
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Respectfully submitted,

Dated: May 15, 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 May 15, 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 2:20-cv-10831-TGB-EAS ECF No. 56 filed 05/18/20 PageID.793 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,

Plaintiff,

MATT SAVICH and DEANA BEARD,

Plaintiff-Intervenors, v.

Case No. 2:20-CV-10831-TGB-EAS Hon. Terrence G. Berg Mag. J. Elizabeth A. Stafford

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

INTERVENING PLAINTIFF HAWKINS’S REPLY BRIEF IN SUPPPORT OF HER EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

Case 2:20-cv-10831-TGB-EAS ECF No. 56 filed 05/18/20 PageID.794 Page 2 of 9
In their Response, Defendants do little more than raise arguments the Court previously rejected. (See ECF No. 23.) Due to how this case developed as a practical matter, the significance of some issues is overstated, but it should be clear enough why Hawkins merits an early injunction, if only due to her circumstances in comparison to the other parties. Moreover, by clarifying a few facts and a few points about the structure of the analysis, her entitlement to relief is crystal clear.
FACTS 1. If the Court grants the relief sought, the State apparently will only need
to include two additional candidates. Whatever the deadline might be to identify “worthy” candidates for the primary election, it probably has passed by now. The Board of Elections needs candidate information early enough to complete its June 2, 2020 deadline for verifying petitions, and it plans to meet on May 29. (See ECF No. 55, PageID.779.) As of May 8, 2020 (and apparently as of this May 18, 2020 hearing), only 2 – two – candidates actually filed nominating petitions and yet are disqualified from access to the ballot due to the current, unconstitutional accommodations. Hawkins is one. The other is described in Defendants’ brief. (Id., PageID.779-780.) 2. Imposing a May 8, 2020 deadline will not alter the State’s ordinary schedule for canvassing and certifying petitions. According to the State’s schedule, the relief sought in this lawsuit has zero impact on its ordinary progress toward the elections. It impacts the time for filing
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petitions and challenges, both of which elapsed no later than May 8 and May 15, respectively. (Id., PageID.777-778.) Those filing and challenge deadlines only impact 18 candidates; the State already must verify 16 of them; and only two might be added if Hawkins succeeds. The State has already verified 3847 of her signatures. (Id. PageID.780.) At most, it might verify the additional 232 or 323. (Id.) The relief here does not present any meaningful delay.
3. Hawkins has not violated § 224 as to her Statement of Organization. The State continues to conflate the technical candidate-committee deadline
with the separate requirement for filing a statement of organization. They are different. Hawkins did not violate the latter. Section 224 of the Michigan Campaign Finance Act provides: “A committee shall file a statement of organization within 10 days after the committee is formed.” Mich. Comp. Laws § 169.224(1) (emphasis added). Nothing in the statute links the deadline for filing a Statement of Organization – or its criminal penalties – to when a person becomes a candidate.1 Instead, actual committee formation triggers it. The statute is not ambiguous, but “[e]ven if § [224] lacked clarity on this point, we would be constrained to interpret any
1 The first date of one’s “candidacy” only applies to the committee-formation deadline, and the penalties appear in § 221.This distinction makes sense. Section 224 applies generally to other PACs, Party Committees and Ballot Question Committees that do not involve candidates. By the time any of those interest-holders actually forms a committee, they usually are in a better position to have recognized the Finance Act’s formation requirements, to have more personnel to sort through the Byzantine statute, and to discern the corporate formalities of committee-formation.
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ambiguity in the statute in [Hawkins]’s favor,” under the rule of lenity. Leocal v.
Ashcroft, 543 U.S. 1, 11 n.8, 125 S. Ct. 377, 384 (2004); see People v. Sawyer, 410
Mich. 531, 536, 302 N.W.2d 534, 536 (1981) (adopting the rule). Here, Hawkins did
not form a committee until May 1. Thereafter, she timely complied with § 224 by
filing a Statement of Organization on May 6, 2020.
Finally, although not in Reply to the State’s Brief, an additional factual clarification might warrant mention.2
ARGUMENT
Nature of the Challenge. Hawkins contends that the State’s actions in jointly
imposing the Stay-At-Home Orders and the ordinary signature filing quotas and
deadlines of Mich. Comp Laws §§ 168.544f and 168.413 burden her rights as a can-
didate and a voter. (E.g., ECF No. 47, PageID.702-704.) That unconstitutional bur-
den continues despite the State’s partial non-enforcement policy as reflected in its
May 8 accommodations, which do not apply to her. Her challenge does not attack
2 The State appears to have updated its website defining a “candidate.” Subsequent remedial measures do not prove liability although they can show the preventability of a harm. Fed. R. Evid. 407. As of May 6 and at least until May 11 – that is, whenever it still mattered to serious candidates – the Secretary of State’s online definition of a “candidate” reflected what Hawkins included in her opening Brief at PageID.749, and it did not discuss personal expenditures. (See, e.g., ECF No. 42-2, PageID.623 (Witucki Decl.)) By sometime on the evening of May 12, that text apparently changed to include a reference to when a person “receives a contribution or makes an expenditure in an attempt to be nominated or elected to office.” Although – at the time of this filing – the site still includes a “last updated” date in January 2019, the date does not appear to be correct in light of the record.
3

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any state action in isolation (including the March 10 deadline). Instead, the State’s actions are unconstitutional as a whole.
Defendants’ Burden of Proof. This case involves shifting burdens of proof. It makes sense to clearly define the State’s burden in context. While Hawkins has the procedural burden under Rule 65 to support her motion, the State has the substantive burden to prove constitutional compliance, and it has not done so. Much like summary judgment, since the State bears the substantive burden of proof, Hawkins meets her burden where she simply identifies the State’s lack of evidence. See generally Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106, S. Ct. 2548, 2554 (1986). The record evidence (below) supports that she is entitled to the relief she seeks.
Litigants like the State sometimes conflate parts of the “rational basis test,” “intermediate scrutiny,” and “strict scrutiny,” and obscure the structure that governs their application. (E.g., ECF No. 55, PageID.786 (importing rational basis considerations)). Where, as here, laws impede fundamental rights or involve suspect classifications, they are presumptively irrational. In such cases, the burden shifts3 to the
3 The burden initially starts on the Plaintiff. Through due process and equal protection, the Fourteenth Amendment “protects individuals from arbitrary and capricious state action.” Spielberg v. Bd. of Regents, 601 F. Supp. 994, 999 (E.D. Mich. 1985) (due process); see Konigsberg v. State Bar of Cal., 366 U.S. 36, 44, 81 S. Ct. 997, 1003 (1961) (Harlan, J.) (discussing the Fourteenth Amendment's protection against arbitrary state action); Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005) (citing Schweiker v. Wilson, 450 U.S. 221, 230, 101 S. Ct. 1074 (1981)) (equal protection). An ordinary law is “presumed to be valid and will be sustained if [it] is rationally related to a legitimate state interest.” Harbin-Bey v. Rutter, 420 F.3d 571, 576
4

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State to prove the validity of its action. Depending on how severe the impediment or how suspect the criteria, the State must overcome intermediate or strict scrutiny. See, e.g., Tyler v. Hillsdale Cty. Sheriff's Dep’t, 837 F.3d 678, 690 (6th Cir. 2015) (en banc) (Second Amend.). For either kind of scrutiny, the burden of proof is on the State. See Burdick v. Takushi, 504 U.S. 428, 434 (1992).4 All state election laws, though necessary, burden fundamental voting and associational rights. So, similar to Tyler, the Anderson-Burdick analysis calls upon the Court to weigh the severity of the impediment and determine how much proof to require of the State.
Defendants failed to meet their burden. The familiar standards for strict scrutiny have been clearly applied in this case so far. Standards for intermediate scrutiny, however, can be somewhat harder to pin down. One thing is clear: the “reasonableness” they require (including under the Anderson-Burdick test) and the “reasonable fit” between state action and its purpose are not minimal or lenient, but rather are still demanding. See Stimmel v. Sessions, 879 F.3d 198, 207 (6th Cir. 2018). After the State identifies a significant, substantial or important government interest that its
(6th Cir. 2005) (citing Schweiker v. Wilson, 450 U.S. 221, 230, 101 S. Ct. 1074 (1981)). Absent a suspect class or fundamental right, Plaintiff must prove the violation. 4 See also Johnson v. California, 543 U.S. 499, 505, 125 S. Ct. 1141 (2005), cited in Cole v. City of Memphis, 97 F. Supp. 3d 947, 961 (W.D. Tenn. 2015) (burden in strict scrutiny cases); United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2275 (1996) (intermediate scrutiny); Cole v. City of Memphis, 839 F.3d 530, 538-39 (6th Cir. 2016) (same); Morrison v. Colley, 467 F.3d 503, 508 (6th Cir. 2006) (same).
5

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action furthers or advances, see Cole v. City of Memphis, 839 F.3d 530, 538-39 (6th
Cir. 2016), the State must prove that its law “bears a reasonably close relationship”
that is proportionate to the interest, id.; see Tyler, 837 F.3d at 698, and does not
“burden substantially more” of the plaintiff’s protected interest “than is necessary,”
Mich. State v. Miller, 103 F.3d 1240, 1252 (6th Cir. 1997).
Hawkins Should Succeed on the Merits. As noted at PageID.750, since the
balance of harms substantially favors Hawkins, she only needs to show serious ques-
tions going to the merits, rather than a “strong likelihood.” But her likelihood of
success is exceedingly strong. Absent relief from this Court, the signature reduction
accommodation will not apply to Hawkins, and she will be excluded from the ballot.
(ECF No. 55, PageID.780.) If the jointly applied laws – the Stay-At-Home Order
and §§ 544f and 413 – alone imposed a severe burden, adding an early deadline making it harder to comply will not withstand scrutiny.5 The burden is severe, and Defendants fail to satisfy the demands of strict scrutiny.6
5 The state contradicts itself, arguing that the pandemic is an emergency justifying unprecedented restrictions but that the pandemic should have sent Hawkins to the streets to collect signatures. This is striking amid the threat of a deadlier second wave of COVID-19. https://www.washingtonpost.com/health/2020/04/21/coronavirussecondwave-cdcdirector/ (Director of the CDC has predicted a second wave of COVID-19 later this year which is likely to be more devasting). A State message like this would be troubling as applied to possible in-person voting in the fall. 6 The hallmark of a severe burden requiring strict scrutiny is “exclusion or virtual exclusion from the ballot.” Schmitt v. LaRose, 933 F.3d 628, 639 (2019). The burden on Hawkins is severe, requiring Defendants to prove its actions are narrowly tailored to a compelling interest. Lawrence v. Blackwell, 430 F.3d 368, 373 (6th Cir. 2005).
6

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The depth of Defendants’ shortfall is evident in their failure to satisfy even

intermediate scrutiny. Defendants cite interests in limiting accommodations to bona

fide candidates, limiting the number of candidates, managing the election schedule,

and requiring candidates to show sufficient support before being placed on the ballot.

(ECF No. 55, PageID. 783-784,787.) Hawkins challenges the joint application of the

laws, but the State’s March 10 condition to granting relief from the otherwise un-

constitutional laws cannot even be justified in isolation. Eliminating it will only add

two candidates, who will not delay the Board of Elections’ schedule. As the Court

previously noted, the April 21 signature deadline could be moved back to May 8,

2020 without significantly harming the State’s interests. (ECF No. 23, PageID.344.)

Hawkins has since fully complied with the law, and the State’s interest in compliance

is fully vindicated. Moreover, the State confirms Hawkins has demonstrated more

support than any other party. The State cannot demonstrate that her exclusion ad-

vances its interest in ensuring a “modicum.” The State Defendants failed to show

any “proportionate” and “reasonably close” relationship between their actions and

interests, or that they refrained from “burdening substantially more” of Hawkins’s

rights than necessary. As to the other elements of the Rule 65 analysis, Hawkins

relies upon her prior arguments. Hawkins is entitled to relief.

May 18, 2020

Respectfully Submitted, /s/Saura J. Sahu Saura J. Sahu (P69627) Attorney for Plaintiff Hawkins

7

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CERTIFICATE OF SERVICE

I hereby certify that on May 18, 2020, I electronically filed the foregoing pa-

per and attached exhibits with the Clerk of the Court using the ECF system, which

will send notification and copies of these filings to all counsel of record.

Respectfully Submitted,

May 18, 2020

CLANCY ADVISORS PLC By: /s/Saura J. Sahu Saura J. Sahu (P69627) Attorneys for Shakira L. Hawkins 230 Nickels Arcade Ann Arbor, MI 48104 (734) 780-7595 sahu@clancyadvisors.com

8

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 58 filed 05/18/20 PageID.804 Page 1 of 20

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-CV-10831 HON. TERRENCE G. BERG

Plaintiff,

MAG. ELIZABETH A. STAFFORD

and

MATT SAVICH, DEANA BEARD, and SHAKIRA L. HAWKINS,

Intervenors-Plaintiffs,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

INTERVENING-PLAINTIFF LYNN M. MAISON’S EMERGENCY MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24(a) and 24(b), Intervening Plaintiff Lynn M. Maison hereby moves this Honorable Court to grant her request to intervene in this case.

Case 2:20-cv-10831-TGB-EAS ECF No. 58 filed 05/18/20 PageID.805 Page 2 of 20
In accordance with LR 7.1(a)(2)(A), counsel sought the concurrence of counsel for Plaintiff, Plaintiff-Intervenors, and Defendants. Counsel for Shakira Hawkins,
Counsel for the State does not concur. In support of this motion, the movant relies upon the attached Brief and proposed Complaint in Intervention.

Dated: May 18, 2020

Respectfully submitted,
/s/ Jean E. Kordenbrock JEAN E. KORDENBROCK (P56605) Fraser Trebilcock Davis & Dunlap, PC Attorney for Lynn M. Maison 124 West Allegan Street, Suite 1000 Lansing, MI 48933 (517) 482-5800

CERTIFICATE OF SERVICE
I hereby certify that on May 18, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing opposing counsel.
By: /s/ Jean E. Kordenbrock Jean E. Kordenbrock

2

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, as candidate for United States Congress and in his individual capacity,

No. 2:20-CV-10831 HON. TERRENCE G. BERG

Plaintiff,

MAG. ELIZABETH A. STAFFORD

And

MATT SAVICH, DEANA BEARD, and SHAKIRA L. HAWKINS,

Intervenors-Plaintiffs,

Vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

BRIEF IN SUPPORT OF INTERVENING-PLAINTIFF LYNN M. MAISON’S
EMERGENCY MOTION TO INTERVENE

Case 2:20-cv-10831-TGB-EAS ECF No. 58 filed 05/18/20 PageID.807 Page 4 of 20
TABLE OF CONTENTS
LIST OF AUTHORITIES............................................................................................................... ii STATEMENT OF ISSUES PRESENTED.................................................................................... iii CONTROLLING OR MOST APPROPRIATE AUTHORITIES ................................................. iv ARGUMENT .................................................................................................................................. 4
I. APPLICABLE STANDARDS ............................................................................................ 4 II. THE MOVANT IS ENTITLED TO INTERVENE AS OF RIGHT UNDER RULE
24(a)(2). ............................................................................................................................... 6 A. The Movant’s Motion is Timely. ............................................................................ 6 B. The Movant Has a Substantial Legal Interest in the Case. ..................................... 7 C. The Movant’s Ability to Protect Her Interests Will be Impaired Absent
Intervention. ............................................................................................................ 8 D. Mr. Esshaki and Other Litigants Do Not Adequately Represent the Movant’s
Interest..................................................................................................................... 9 II. IN THE ALTERNATIVE, THIS COURT SHOULD PERMIT THE MOVANT TO
INTERVENE UNDER RULE 24(b)(1)(B). ..................................................................... 10 CONCLUSION ........................................................................................................................... 12
i

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Cases

LIST OF AUTHORITIES

Baker v. Iron Wkrs.’ Local 25 Vacation Pay Fund, E.D. Mich. Case No. 19-12963, 2020 U.S. Dist. LEXIS 27324, at *4 (E.D. Mich February 18, 2020)......................................................... 4
Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1987)......................................................................... 7

Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129; 87 S. Ct. 932 (1967) ..... 7

Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by any Means Necessary v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006) ................ 9

Compare Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich. 1980) ..................................................... 8 Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999).................................................................. 7, 8, 9

Horrigan v. Thompson, No. 96-4138, 145 F.3d 1331(6th Cir. 1998) .............................................. 5

Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256 (7th Cir. 1983)........................... 5

League of Women Voters of Mich. v. Johnson, 902 F.3d 572 (6th Cir. 2018)............................... 11 Linton v. Commissioner of Health & Env’t, 973 F.2d 1311 (6th Cir. 1992) ................................... 9 Michigan State AFL-CIO v. Miller, 103 F.3rd 1240 (6th Cir. 1997)....................................... passim

Purnell v. Akron, 924 F.2d 941 (6th Cir. 1991) ..................................................................... 7, 9, 10

Reich v. ABC/York-Estes Corp., 64 F.3d 316 (7th Cir. 1995) ......................................................... 5

Trbovich v. United Mine Wkrs., 404 U.S. 528; 92 S. Ct. 630 (1972) ............................................. 7 Other Authorities

6 James Wm. Moore, Moore’s Federal Practice, § 24.03[a][a] (3d ed. 2005); .............................. 5 Rules

Fed. R. Civ. P. 24(a) .............................................................................................................. passim

Fed. R. Civ. P. 24(a)(2)................................................................................................................... 5

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

Fed. R. Civ. P. 24(b)(1)(B)(3)......................................................................................................... 5

ii

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STATEMENT OF ISSUES PRESENTED 1. Whether the Court must grant Maison’s request to intervene under Fed. R.
Civ. P. 24(a) because she has promptly and timely filed this Motion; she personally has substantial constitutional rights to ballot access which the Parties are litigating here; none of the Parties share her same interest in challenging a particular State election requirement/ accommodation that imposes an arbitrary deadline for creating a campaign finance committee; and as a result the Parties might not protect and are not protecting her legal interests. 2. Whether the Court should exercise its discretion to allow Maison to intervene under Fed. R. Civ. P. 24(b) because she has promptly and timely filed this Motion; she has a claim or defense that shares with the main action a common question or law or fact; and her intervention will not unduly delay or prejudice the adjudication of the original parties’ rights.
iii

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CONTROLLING OR MOST APPROPRIATE AUTHORITIES The issues in this Motion are governed by Federal Rule of Civil Procedure 24(a),(b), as most helpfully interpreted by Michigan State AFL-CIO v. Miller, 103 F.3rd 1240, 1245 (6th Cir. 1997).
iv

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The movant, Lynn M. Maison, respectfully submits this brief in support of her motion to intervene. Maison is a judicial candidate and a voter with direct interests in this important constitutional case. Under the facts alleged in her proposed Complaint (Exh. A: Compl. in Intervention), Federal Rule of Civil Procedure 24(a) grants her a right to intervene. Alternatively, she presents compelling reasons for the Court to permit intervention under Rule 24(b). For the reasons below, Maison respectfully asks the Court to grant her request.
BACKGROUND On March 31, 2020, U.S. Congressional candidate, Eric Esshaki, filed a twocount Complaint that initiated this election rights case. (Compl., ECF No. 1, Page Id.1.) In his capacity as a candidate, Esshaki challenged the infringement of his right to have his name on the ballot. (Id. Page ID.11) In his capacity as a voter, he challenged the infringement of his ability to vote for the candidate of his choice. (Id. Page ID.12.) In both counts, he relied upon the First and Fourteenth Amendments, which preserve fundamental political, associational and voting rights to ballot access. Since then, three judicial candidates who also faced similar impediments and infringements – Matt Savich, Deana Beard, and Shakira Hawkins – have successfully intervened in this action. While their political interests might differ, Esshaki, Savich, Beard, Hawkins, and Maison share a number of common legal interests. They each are active
1

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candidates for office in Michigan’s 2020 elections. (See Exhibit A, Paragraph 2). They were each impacted by the unusual national and statewide emergencies that COVID-19 caused, as well as by the substantial restrictions that the related gubernatorial Executive Orders imposed on their respective campaigns. (See Exhibit A, Paragraphs 17-20). Nonetheless, during a global pandemic and while under a Stay-At-Home Order, each gathered a significant showing of public support for their campaigns. Under normal circumstances, each could have been expected to comfortably surpass Michigan’s ordinary signature requirements. Yet, as a result of the imposition of arbitrary and unconstitutional deadlines, some face disqualification which might suit ordinary times but are unsupportable during the current emergency.
Maison differs from Esshaki and the other Intervenor-Plaintiffs in one respect, namely, she has been excluded from the ballot despite having complied with the requirements articulated in this Honorable Court’s April 20, 2020 Order and with the requirements articulated on the Secretary of State website as of May 8, 2020, the extended deadline for filing signature petitions. While Ms. Maison’s candidate committee was formed prior to March 10, 2020, and she filed a sufficient number of signatures by the May 8, 2020 extended filing deadline, her candidacy has not been approved due to a perceived lack of compliance by the Macomb County Clerk. Indeed, the denial of Maison’s certification for the August 4, 2020 primary election
2

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has been based upon a failure to “file” a statement of organization by March 10, 2020, a requirement never before articulated by this Court or by the Secretary of State for any candidate seeking a state office.
As affirmed by the Sixth Circuit, this Court has already determined that the State’s jointly imposed requirements violate the Constitution as applied during these unusual and difficult times. The State’s accommodations to remedy the unconstitutional burden, however, currently include an arbitrary campaign finance committee creation deadline of March 10, 2020 (“Arbitrary Finance Committee Deadline”). Although Maison obviously has more than a modicum of support, she is being denied the benefit of the State’s relaxed signature requirement and the extension of its filing deadline because she had not filed a Statement of Organization by March 10, 2020. (Exhibit A, Paragraph 29). Application of the Arbitrary Finance Committee Deadline threatens to keep Maison off the ballot and deprives her supporters of the ability to vote for their desired candidate.
When the Secretary of State issued new accommodations on its website on May 8, 2020, it included the arbitrary March 10, 2020 deadline for state candidates to have “established” a candidate committee. An expanded interpretation of this arbitrary deadline by the Macomb County Clerk has deprived Maison of the benefit from the relaxed requirements and prevented her from being included on the ballot for the August 4, 2020 election, absent intervention by this Court.
3

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Neither the Plaintiff nor the Plaintiff-Intervenors have been impacted by the overly broad reading of this Honorable Court’s April 20, 2020 Order and the Secretary of State’s Special Announcement of May 8, 2020. Accordingly, as argued below, Maison is entitled to intervention as of right. Alternatively, she seeks leave to intervene.
ARGUMENT Ms. Maison seeks to intervene to assert her fundamental rights to ballot access under the First and Fourteenth Amendments, which, in all likelihood, will be impeded if her request is denied. The Court has amply described the nature of those rights in its recent April 20, 2020 Order. (ECF No. 23, PageID.330-333). Matters relating to the election are moving quickly, this Court is experienced with the facts and issues, and Maison will lose valuable time during which her rights will be impeded if she is forced to initiate a separate cause of action. For the following reasons, Maison respectfully requests that this Honorable Court grant her request to intervene. I. APPLICABLE STANDARDS This Court is familiar with the standards that govern motions to intervene. See, e.g., Baker v. Iron Wkrs.’ Local 25 Vacation Pay Fund, E.D. Mich. Case No. 19-12963, 2020 U.S. Dist. LEXIS 27324, at *4 (E.D. Mich February 18, 2020) (Berg, J.) (granting intervention).
4

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Under Federal Rule of Civil Procedure 24, intervention can be mandatory or permissive. The Court “must permit” Maison to intervene as long as the motion is “timely” and the parties do not adequately represent her interests, because she “claims an interest relating to the…transaction[s involved in this case], and …disposing of the action [without her] may as a practical matter impair or impeded [her] ability to protect [her] interest.” Fed. R. Civ. P. 24(a)(2). Alternatively, the Court has discretion to allow Maison to intervene because she “has a claim or defense that shares with the main action a common question or law or fact,” and her intervention will not “unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(1)(B)(3).
In deciding the motion, “the court will accept as true all well-pleaded, nonconclusory allegations in the motion to intervene, in the proposed complaint or answer in intervention, and in declarations supporting the motion…” 6 James Wm. Moore, Moore’s Federal Practice, § 24.03[a][a] (3d ed. 2005); see also Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995); Horrigan v. Thompson, No. 96-4138, 145 F.3d 1331 *2 [published in full-text format at 1998 U.S. App. LEXIS 9506] 6th Cir. 1998) (Table) (quoting Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256, 1258 (7th Cir. 1983)).
5

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II. THE MOVANT IS ENTITLED TO INTERVENE AS OF RIGHT UNDER RULE 24(a) (2). Under the Sixth Circuit’s analysis of Rule 24, Maison has a right to intervene
because: (1) her application is timely; (2) she has a “substantial legal interest in the case; (3) her “ability to protect that interest [is impaired] in the absence of intervention”; and (4) the current parties do not adequately represent her interests. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). The motion must be granted.
A. The Movant’s Motion is Timely. A motion filed within weeks of the Complaint and during the early stages of the litigation is considered timely. Miller, 103 F.3d at 1245. Here, Maison filed her motion still in the early weeks of this case and at the first practicable time when it became clear both that the Court’s rulings impact her access to the ballot and that the current parties are not in a position to adequately protect her interests. Maison has monitored this case since its inception, but did not believe that intervening would be necessary until the March 10, 2020 arbitrary deadline for establishment of a candidate committee was wrongfully applied to her candidate filing. When the Macomb County Clerk failed to approve to her counsel’s demand for ballot access for three (3) days, it became clear that intervention would be necessary.
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B. The Movant Has a Substantial Legal Interest in the Case. When identifying a movant’s legal interest, the term “interest” is to be construed liberally. Bradley v. Milliken, 828 F.2d 1186, 1992 (6th Cir. 1987); see Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999) (court “subscribe[s] to a ‘rather expansive notion of the interest sufficient to invoke intervention of right.’”) (quoting Miller, 103 F.3d at 1245). Although every movant’s request is factspecific, Maison clearly meets the threshold. She does not need to demonstrate any “specific legal or equitable interest,” Purnell v. Akron, 924 F.2d 941, 948 (6th Cir. 1991) (citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 132-36; 87 S. Ct. 932 (1967)), and she need not even show standing to initiate a separate lawsuit. Miller, 103 F.3d at 1245 (discussing Purnell, 925 F.2d at 948), in turn citing Trbovich v. United Mine Wkrs., 404 U.S. 528, 536-39; 92 S. Ct. 630 (1972)). In the case at bar, Maison is a candidate for state judicial office who is being deprived of the same First and Fourteenth Amendment rights that Court described at Page ID.30-33. She not only has the same standing as the other Plaintiffs to initiate a lawsuit, but she also has a likelihood to prevail. Maison also has a substantial likelihood of prevailing on issues that are not now adequately represented. While the Governor’s Stay-At-Home Orders and Michigan’s election laws significantly impaired Maison’s ability to timely and
7

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comfortably surpass the minimum filing requirements, she is now receiving disparate treatment as the result of an expanded interpretation of an arbitrary deadline imposed by the Secretary of State. The Defendants now appear to be narrowing the already arbitrary March 10, 2020 deadline by requiring the filing of Statement of Organization rather than merely requiring the establishment of a candidate committee. By gathering approximately 1,600 signatures between March 4, 2020 and May 8, 2020, Maison has demonstrated that she was a serious candidate prior to the issuance of any Executive Order, and a modicum of support has been exhibited despite the existence of a pandemic.
Where, as here, the intervenor’s rights could be affected by the litigation, Maison has amply satisfied this factor. Compare Usery v. Brandel, 87 F.R.D. 670, 676 (W.D. Mich. 1980) (“It is well-established that an applicant has ‘a significant protectable interest’ in rights which may be affected by interpretation in a pending case …”); Grutter, 188 F.3d at 399-400 (finding that prospective minority applicants to the University of Michigan had a “direct, substantial, and compelling” legal interest to support intervention as of right where the proposed intervenor’s chances of gaining admission could be impacted by plaintiffs’ lawsuit).
C. The Movant’s Ability to Protect Her Interests Will be Impaired Absent Intervention.
The Court’s inquiry into the degree of potential impairment absent intervention is also lenient. To be entitled to intervene, Ms. Maison need not face
8

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“substantial” or inevitable impairment of her interests. Purnell, 925 F.2d at 948. Instead, she “must show only that impairment … is possible if intervention is denied.” Miller, 103 F.3d at 1247 (citation omitted). Her “burden is minimal,” Id., and “is not an onerous task.” Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by any Means Necessary v. Granholm, 240 F.R.D. 368, 375 (E.D. Mich. 2006).
Here, without an alteration or limitation of the State’s proposed accommodations, Maison almost certainly will be denied access to the ballot. The near-certainty far exceeds the potential impact required by Rule 24.
D. Mr. Esshaki and Other Litigants Do Not Adequately Represent the Movant’s Interest.
Finally, Maison’s burden is likewise “minimal” on the factor of inadequate representation “because it is sufficient that the movant[] prove that representation may be inadequate.’ One is not required to show that the representation will in fact be inadequate.” Miller, 103 F.3d at 1247 (quoting Linton v. Commissioner of Health & Env’t, 973 F.2d 1311, 1319 (6th Cir. 1992)) (emphasis added); See Grutter, 188 F.3d at 400 (all that is required is that the “representation might be inadequate”) (emphasis in original). “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.” Miller, 103 F.3d at 1247.
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Upon information and belief, neither the Plaintiff nor any of the PlaintiffIntervenors have been denied candidacy based on a late filing of a Statement of Organization, which statement documented formation of a candidate committee prior to the arbitrary March 10, 2020 deadline. Indeed, the expanded reading of this Court’s April 20, 2020 Order and the Secretary of State’s vague and fluid requirement of the “establishment” of a candidate committee is preventing Maison access to the ballot. The other parties will not be seeking relief from the application of the State’s “new” rules. There exists a likelihood that the parties’ arguments may be inadequate to protect Maison’s interests. Accordingly, Maison is entitled to intervention as of right. II. IN THE ALTERNATIVE, THIS COURT SHOULD PERMIT THE
MOVANT TO INTERVENE UNDER RULE 24(b)(1)(B). In the alternative, this Honorable Court should allow Maison to intervene under the permissive intervention provisions of Federal Rule of Civil Procedure 24(b). Where, as here, “the motion for intervention is timely and there is at least one common question of law or fact,” the Court has broad and abundant discretion to grant the request. Miller, 103 F.3d at 1248 (citing Purnell, 925 F.2d at 950-51). Maison’s claims involve all the same First and Fourth Amendment rights to ballot access that Plaintiffs’ invoke as applied to the same 2020 election, the same Michigan election rules governing her candidacy, and the same proposed
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accommodations to remedy the unconstitutional burden. There are common issues among the claims of Ms. Maison and the remaining parties.
As for whether the existing parties would suffer any undue burden from intervention, the Court has broad discretion. Id., see League of Women Voters of Mich. v. Johnson, 902 F.3d 572, 578 (6th Cir. 2018). There is no actual likelihood that Maison will significantly delay proceedings. She has remained informed about the case and promptly presents a clear question that can be resolved amid existing and ongoing disputes over the State’s accommodations. Her new counsel is likewise adequately informed. Furthermore, there is no other apparent prejudice that could result from her participation. Maison respectfully submits that she has adequately met the requirements of the Federal Rules.
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CONCLUSION For the reasons set forth above, Maison submits that her timely motion entitles her to intervene as of right under Rule 24(a), while supporting an exercise of the Court’s discretion to permit her to intervene under Rule 24(b). The request to intervene should be granted.

Dated:

May 18, 2020

Respectfully submitted,
/s/ Jean E. Kordenbrock JEAN E. KORDENBROCK (P56605) Fraser Trebilcock Davis & Dunlap, PC Attorney for Lynn M. Maison 124 West Allegan Street, Suite 1000 Lansing, MI 48933 (517) 482-5800

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, Plaintiff;

2:20-CV-10831-TGB

MATT SAVICH, DEANA BEARD, SHAKIRA HAWKINS, and LYNN MAISON,
Plaintiff-Intervenors,
vs.

ORDER GRANTING MOTION
FOR PRELIMINARY INJUNCTION; MOTION TO
INTERVENE; MOTION TO FILE SUR-REPLY

GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

Before the Court are Shakira L. Hawkins’ Motion for Preliminary Injunction (ECF No. 51), Lynn M. Maison’s Emergency Motion to Intervene (ECF No. 58), and the State’s Motion to File Sur-Reply (ECF No. 61).

Case 2:20-cv-10831-TGB-EAS ECF No. 64 filed 05/20/20 PageID.867 Page 2 of 16
I. Motion for Preliminary Injunction a. Background
On April 20, 2020 this Court granted Plaintiff Esshaki’s motion for a preliminary injunction. ECF No. 23. The injunction was subsequently appealed by the State and partially stayed by the Sixth Circuit Court of Appeals. Esshaki v. Whitmer, 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020). The Sixth Circuit upheld the portion of the preliminary injunction that enjoined the State from enforcing the State’s statutory signature requirements in the context of the COVID-19 pandemic as written, but stayed the portion of this Court’s Order that compelled the State to adopt specific remedies. Id. at *2. In response, on May 8, 2020, the State adopted a series of accommodations: it announced that all candidates who had filed a statement of organization with the Federal Election Commission or established a candidate committee under the Michigan Campaign Finance Act by March 10, 2020 (the “March 10th deadline”) would have until May 8, 2020 to file signatures, could collect signatures using electronic means, and would qualify for the primary ballot if they obtained 50% of the signatures required by statute. May 8,
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2020 Special Announcement, Mich. Sec’y of State, https://www.michigan.gov/sos/0,4670,7-127-1633---,00.html.
On May 12, 2020, Plaintiff Shakira L. Hawkins filed a motion for a temporary restraining order, preliminary injunction, and permanent injunction. ECF No. 51. Ms. Hawkins, a judicial candidate for Wayne County Circuit Court, asks this Court to expand the scope of candidates eligible to benefit from the State’s 50% signature reduction, extended deadline, and electronic signature gathering option by enjoining the State from enforcing the requirement that, in order to qualify for the relief offered by the State, candidates must have filed a statement of organization with the Federal Election Commission or established a candidate committee under the Michigan Campaign Finance Act by March 10, 2020. Id.
b. Likelihood of Success on the Merits This Court has already found that the combination of Governor Whitmer’s March 23, 2020 Stay-at-Home Order and the State’s ballotaccess provisions creates a severe burden on the First and Fourteenth Amendment rights of candidates seeking access to the August 4, 2020 primary ballot. ECF No. 23, PageID.342. Though that finding was made
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before Ms. Hawkins was a party to this case, the burden placed on Ms. Hawkins’ constitutional rights is essentially the same as the burden affecting the other candidates in this matter except in one respect, which is addressed in the next paragraph. See id. Thus, for the reasons cited in the Court’s April 20, 2020 Order, the Court will again apply strict scrutiny to the State’s ballot-access provisions.
Ms. Hawkins’ predicament differs from that of the other Plaintiffs in this matter in this key respect: As of March 10, 2020, though Plaintiff Hawkins had already collected approximately 3,000 signatures, she had not yet established a candidate committee under the Michigan Campaign Finance Act. Hawkins Compl. ¶¶ 17, 19, ECF No. 47, PageID.694. This meant that though Ms. Hawkins had been burdened in the exact same way as the other Plaintiffs, she was unable to avail herself of the State’s 50% signature reduction, extended deadline, and electronic signature collection options. She contends that the State’s March 10th deadline is unconstitutional because it would not withstand a strict scrutiny analysis. ECF No. 51, PageID.743.
In order to survive a strict scrutiny analysis, the State ballot-access provisions, including the March 10th deadline, must be narrowly tailored
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to effectuate a compelling state interest. Lawrence v. Blackwell, 430 F.3d 368, 373 (6th Cir. 2005). In this case, the Court has already found that the State has a compelling interest in ensuring that candidates have a modicum of support before their names are printed on the ballot. See ECF No. 23, PageID.344-45. The March 10th deadline was initially proposed by the State before the Court heard oral argument on April 15, 2020. The State argued then, as it does now, that the March 10th deadline effectuates the State’s compelling interest by preventing opportunistic “Johnny-come-lately” candidates—who never would have otherwise run for office or been able to meet the normal statutory signature requirements—from taking advantage of the relaxed requirements in the Court’s April 20, 2020 Order and deciding to file lastminute petitions. ECF No. 55, PageID.778. None of the parties at the time objected to the State’s proposed March 10th deadline, and it was included in the Court’s April 20, 2020 Order. ECF No. 23, PageID.359. Following the Sixth Circuit’s May 5, 2020 decision, the State again adopted the March 10th deadline on its own volition as part of the State’s May 8, 2020 accommodations.
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Now there are new facts. Before the Court is a candidate who had successfully collected more than 3,000 signatures as of March 10, 2020 but is nonetheless being prevented from obtaining the relief provided to other candidates by the provision of the State’s accommodation intended to prevent opportunistic, “Johnny-come-lately” candidacies. Clearly, a candidate who had gathered more than 3,000 signatures by early March (more than any other Plaintiff in this case) is neither opportunistic nor by any stretch a “Johnny-come-lately.” Indeed, all doubt was removed on that point when Ms. Hawkins filed a completed petition on April 21, 2020 containing 4,283 signatures—283 more than required by Section 168.544f. Hawkins Compl. ¶ 31, ECF No. 47, PageID.698. Ms. Hawkins’ predicament vividly illustrates a concern that was voiced by multiple amici—and the Court—before the State announced its May 8, 2020 accommodations: The March 10th deadline is a poorly calibrated instrument for determining who was a serious candidate before the Court reduced the signature requirements and extended the deadline on April 20, 2020.
The State argues that Ms. Hawkins is not entitled to relief because by not establishing her candidate committee by March 10, 2020,
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she violated Michigan’s election laws at her own peril. ECF No. 55, PageID.783. Under Section 169.203(1)(c) of Michigan’s election laws, all persons running for office must form a candidate committee after making any expenditure in furtherance of their candidacy, and Ms. Hawkins does not contest that she may have committed a de minimis violation of that provision by personally making small expenditures, such as those that might be necessary to make copies. Mich. Comp. Laws § 169.203(1)(c); ECF No. 49, PageID.714.
The State is certainly correct in asserting that candidates for elective office should be expected to follow state election law. This Court does not condone Ms. Hawkins’ statutory violations or those of any other candidate. However, as Ms. Hawkins’ situation illustrates, whether or not a particular candidate was in compliance with Michigan’s candidate committee formation requirements on March 10th has little bearing on whether or not that candidate is a serious contender who—absent the pandemic—would likely have been able to gather the full number of signatures required by Section 168.544f, as Ms. Hawkins proved able to do. Mich. Comp. Laws § 168.544f. If the statutory penalty for violating the candidate committee formation requirements were exclusion from
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the ballot, the State may have a stronger case, since no serious candidate would violate it. But it is not: the statutory penalty for failure to timely form a candidate committee is a fine capped at $1,000. Mich. Comp. Laws § 169.221(13).
Moreover, the March 10th deadline works inequities even for serious candidates who meticulously comply with the election laws. For example, if a person were to become a candidate shortly before or on March 10th, that person would not have been required to form a candidate committee for ten days, and would not have had to file a statement of organization for twenty days. See Mich. Comp. Laws §§ 169.221, 169.224. A serious candidate such as this who began campaigning in early March, formed a candidate committee as required by law after March 10th, and then timely filed a statement of organization in late March, would be completely barred from taking advantage of the State’s May 8, 2020 accommodations—even though she fully complied with Michigan law, and may have demonstrated strong popular support through gathering 50% or more of the required signatures before May 8. The State acknowledges that such candidates may exist. ECF No. 55, PageID.783. Clearly, as Ms. Hawkins and these
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examples illustrate, the March 10th deadline is not narrowly tailored to effectuate the State’s interest in ensuring that candidates have a modicum of support before inclusion on the ballot.
The State had other options. For example, a requirement that candidates needed to demonstrate that they were making serious efforts to gather signatures or that they had obtained a certain percentage of their signatures by a certain date might possibly survive a strict scrutiny analysis, as it more closely tracks the statutory signature requirement and is clearly a measure that shows a modicum of public support at a particular point in time.1 But the March 10th deadline as it is currently being enforced does not. Accordingly, Ms. Hawkins is likely to succeed on the merits of her claim.
c. Other Injunction Factors In the Court’s April 20, 2020 Order, this Court already assessed the likelihood of irreparable harm to the interests of a substantially similar
1 But tying a particular signature percentage requirement to the March 10 date would also have the problem of excluding serious candidates who were just ramping up in March, and worked extremely hard gathering signatures between the Governor’s declaration of a state of emergency on March 10th and the Stay-At-Home Order that was issued on March 23rd. Even if such candidates had by then exceeded 50% of the number of signatures required at the time of the shut-down, and were on track to meet the full signature requirement by the original due date of April 21—they would be unqualified to appear on the ballot because of not meeting a retroactive signature percentage requirement, or the committee formation requirement, back on March 10th.
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Plaintiff and weighed those harms against the harms likely to be incurred by the State and the public were the Court to grant injunctive relief. ECF No. 23, PageID.346-51. The Court adopts that analysis again here.
The Court recognizes that the State’s interest in ensuring the orderly administration of elections weighs much more heavily this time around, as the Bureau of Elections, local clerks, and candidates have been operating under the modified ballot-access requirements and new deadlines since April 20, 2020. Permitting additional candidates to benefit from the 50% signature reduction, the May 8th extension, and electronic signature option may cause some disruption and inefficiencies at this late hour. At the same time, the evidence before the Court is that the number of additional candidates who would come forward as a result of an injunction may be low. According to the State, as of the extended filing deadline date of May 8, 2020, 151 candidates had filed nominating petitions with the Bureau of Elections. ECF No. 55, PageID.779. Of those 151 candidates, 17 filed more than 50% but fewer than 100% of the required signatures. Id. Of those 17, 16 had established their candidate committee by March 10th and qualified for relief. Id. This means that
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exactly one candidate would be affected by this Order in that data set. Notably, at oral argument on May 18th, the State indicated that that statistic does not capture petitions filed with local clerks, or candidates that may have tried to file their petitions but were not allowed to leave their paperwork with the filing official because they did not meet the March 10th deadline. That statistic also does not include candidates who, like Ms. Hawkins, filed her petition on the original deadline date of April 21st, exceeded the statutory signature requirement, but who may nevertheless lose a place on the ballot due to signature challenges because she did not form her candidate committee by March 10th and is therefore ineligible for the relief afforded by the State’s accommodations. That being said, the Court cannot give significant weight to such theoretical concerns, because the only statistics provided by the State offer little if any evidence that a disruptive tidal wave of new, previouslyexcluded candidates will materialize.
Considering all four factors on balance, the Court finds that they weigh in favor of granting injunctive relief. See Bays v. City of Fairborn, 668 F.3d 814, 818-19 (6th Cir. 2012).
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d. Remedy Court intervention in this case was first made necessary by the State’s failure to offer reasonable accommodations to candidates in light of the unprecedented restrictions on daily life—including signature gathering—mandated by the Governor’s Stay-at-Home Orders. As the Court noted in its April 20, 2020 Order, other states acted with foresight in easing ballot-access restrictions before candidate signatures were due. ECF No. 23, PageID.352. Michigan did not. The possibility that future challenges might be made to the March 10th deadline was first discussed at a hearing on May 7, 2020, and the Court strongly encouraged the State to address the issue when it formulated its May 8, 2020 accommodations so as to head-off future litigation. Unfortunately, the State did not, and here we are. The State now requests that this Court limit any injunctive relief it grants to Ms. Hawkins alone. ECF No. 55, PageID.772. The Court questions whether such limited relief would be in the public interest, however, because the history of this case suggests that, no sooner than the Court’s order is posted, another candidate in substantially the same position as Ms. Hawkins will emerge from the ether and seek to intervene.
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The Court, the State, the candidates, and the public would all benefit from certainty going forward and an end to this litigation. Accordingly, the Court will enjoin the State from excluding candidates from the accommodations offered by the State based on the March 10th deadline because the March 10th deadline is not narrowly tailored to accomplish a compelling state interest.
In light of this constitutional infirmity in the State’s reasonable accommodation, it must adopt more effective measures to remedy the problem. While the Court in issuing an injunction normally includes mandatory terms intended serve as an adequate remedy, because this case involves state election law, the Court is acutely aware of the Sixth Circuit’s recent holding that “the federal court cannot impose such specific manner-of-election requirements on a State without breaching the express delegation of authority in the Constitution.” Esshaki, 2020 WL 2185553 at *2.
Nevertheless, in offering guidance to the State as it develops and selects measures that it must in order to comply with this injunction, the Court notes that an accommodation along the following lines would comply with the injunction:
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- That any petitions filed, and any petitions that were attempted to be filed but were rejected, by May 8, 2020, and which contained at least 50% of the required number of signatures, shall be accepted for filing in accordance with the reasonable accommodations adopted by the State regardless of the candidate’s compliance with the March 10th deadline.
- That because the March 10th deadline also operated to exclude any candidates who successfully gathered 50% or more of the required signatures by May 8, 2020, but elected not to file their petitions on that date because they did not meet the March 10th deadline, petitions of such candidates that were completed by May 8, 2020 shall be accepted for filing within two days of the date of this Order, that is, by no later than 5:00 p.m. on May 22, 2020.
Should the State choose to amend its reasonable accommodations in such a manner, they would comply with this injunction and pass the test of strict scrutiny. Of course, it lies within the State’s authority and discretion to select any scheme of accommodation that is narrowly tailored to meet its compelling state interest, as this remedy is.
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For all the reasons set out in the foregoing, the Motion for Preliminary Injunction (ECF No. 51) is hereby GRANTED.
II. Motion to Intervene and Motion to File Sur-Reply The Court finds that Ms. Maison’s Motion to Intervene
demonstrates that Ms. Maison shares significant common factual and legal issues with the other Plaintiffs in this case. Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), the Emergency Motion to Intervene (ECF No. 58) is GRANTED.
The State’s Motion to File Sur-Reply (ECF No. 61) is GRANTED. III. Conclusion
For the reasons herein, the Motion for Preliminary Injunction (ECF No. 51) is GRANTED. The State is HEREBY ENJOINED from enforcing its ballot-access provisions such that candidates who did not file a statement of organization with the Federal Election Commission or establish a candidate committee under the Michigan Campaign Finance Act by March 10, 2020 are excluded from the State’s May 8, 2020 accommodations. To effectuate this injunction, IT IS ORDERED that the State shall amend its reasonable accommodations in a manner of its own choosing that is consistent with reasoning set forth in this Order.
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IT IS FURTHER ORDERED that Ms. Maison’s Emergency Motion to Intervene (ECF No. 58) and the State’s Motion to File SurReply (ECF No. 61) are GRANTED.
SO ORDERED. DATED this 20th day of May, 2020.
BY THE COURT: /s/Terrence G. Berg TERRENCE G. BERG United States District Judge
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ERIC ESSHAKI, as candidate For U.S. Congress and in his Individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position, Wayne County and in her individual capacity;

Case No. 2:20-CV-10831-TGB-EAS HON. TERRENCE G. BERG Magistrate: Elizabeth A. Stafford

Plaintiffs,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

vs.

BRENDA K. SANDERS,

Pro Se Intervenor,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of the State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities;

______________________________________________________________________/

EMERGENCY MOTION TO INTERVENE WITH SUPPORTING BRIEF

Case 2:20-cv-10831-TGB-EAS ECF No. 65 filed 07/27/20 PageID.883 Page 2 of 9
Pursuant to Fed. R. Civ. P 24(b)(1)(B), Brenda K. Sanders (“Sanders”), in pro se, hereby moves this Court for an order allowing her to immediately intervene in the above-captioned case in support of this motion, Sanders, states as follows:
In accordance with E.D. Mich L.R. 7 1(a), the undersigned movant has contacted attorneys of record for Plaintiff and Defendants to ascertain whether this motion was opposed.
MOVANT’S INTEREST 1. Sanders seeks nomination as an Independent Candidate for U.S. Congress in the 13th Congressional District of Michigan. 2. That on or about August 19, 2019, Sanders filed her Statement of Organization with the Federal Election Commission. Sanders filed an Amended Statement of Organization with the Federal Election Commission in June, 2020. To date, Sanders has collected approximately 1722 signatures. 3. That to file as an Independent Candidate, a person is required to attain a minimum of 3000 signatures and a maximum of 6000 to access ballot qualification. 4. That the movant started a signature campaign in late March after her bid for U.S. Congress in South Carolina ended with a failure to pay an option fee to access the ballot. The South Carolina deadline to pay the option fee was March 30, 2020. 5. That the movant returned to her home state, Michigan, and began collecting signatures after she ascertained that she was not going to be able to pay the option fee in South Carolina. 6. That the filing deadline for Sanders to submit her signed petitions with the Wayne County Clerk located at 2 Coleman Young Center, Room 502, Detroit, Michigan 48226 was July 16, 2020.
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7. That Sanders is qualified to seek nomination to the office of U. S. House of Representatives for the 13th Congressional District of Michigan.
8. That due to the COVID-19 shutdown and subsequent Emergency Orders issued by Governor Gretchen Whitmer, Sanders was stymied in gathering the requisite signatures by the present permitted methods under MCL 168.133.
9. That furthermore, Sanders as an Independent Candidate for U.S. Congress was required to collect three times more signatures under normal circumstances than the designated “Party Affiliated” Candidates.
10. That therefore, Intervenor Sanders had an even greater burden to collect 3000 t0 6000 nominating signatures and under more restrictive circumstances due to the COVID-19 pandemic.
12. That Sanders was apprised of the existence of this instant case after this Honorable Court issued its Order on April 20, 2020.
13. That Sanders is similarly situated to Plaintiff Esshaki, who is a “Party Affiliated” Candidate running for U.S. House of Representatives in Michigan.
14. That Esshaki was initially only required to collect at a minimum, 1000 signatures and his burden was unreasonably decreased because of the COVID-19 crisis and consequently, Esshaki was able to meet his burden.
15. That Sanders is required to collect at a minimum of 3000 signatures and a maximum 6000 signature ceiling, and therefore Intervenor Sanders’ burden was magnified even more in the midst of the COVID 19 crisis.
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16. That Sanders has already collected 1722 signatures in her quest to gain ballot access to the November 3, 2020 general election. That 1722 signatures represent approximately fifty percent of the 3000 minimally signatures required by Michigan law.
17. That this is a significant case because the outcome effects and has broad and policy implications on all votes in Michigan and many candidates seeking to get on both the August 4, 2020 primary ballot and the November 3, 2020 general election ballot in the case.
18. This lawsuit seeks the remedy of extending the filing deadline or decreasing the number of requisite signatures for the November 3, 2020 general election ballot.
19. That Sanders shares a common question of law and fact with Plaintiff in the original Complaint filed by Eric Esshaki. Sanders also shares the same factual and legal issues raised by Esshaki’s Motion for a Temporary Restraining Order and or a preliminary injunction.
WHEREFORE, Sanders requests that this Honorable Court grant her Motion to Intervene and accept her proposed Intervening Complaint and permit her to adopt the factual and legal position that both Esshaki and other similarly situated Plaintiffs have made in this instant case. See FRCP 24(b)(1)(B). Attached is a copy of Sanders’ Proposed Intervening Complaint.
Respectfully Submitted,

Dated: July 25, 2020

BY:_/_s__/_B__r_e__n__d_a___K__._S__a__n__d_e__r_s___________
Brenda K. Sanders Independent Candidate for Congress in the 13th Congressional District Intervenor in Pro Se P. O. Box 14183 Detroit, Michigan 48214 (313) 685-1096 (803) 991-1137 brendaksanders@outlook.com
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ERIC ESSHAKI, as candidate For U.S. Congress and in his Individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position, Wayne County and in her individual capacity;

Case No. 2:20-CV-10831-TGB-EAS HON. TERRENCE G. BERG Magistrate: Elizabeth A. Stafford

Plaintiffs,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

vs.

BRENDA K. SANDERS,

Pro Se Intervenor,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of the State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities; ______________________________________________________________________/

BRIEF IN SUPPORT OF MOTION TO INTERVENE

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Statement of Question Presented Whether Intervenor Sanders should be allowed to intervene in tis action under Fed. R. Civ. P. 24(b)(1)(B) where her claim against the Defendants share common questions of law and fact with the Plaintiff, Esshaki?
Controlling Authority Fed. R. Civ. P. 24(b)(1)(B) which provides that:
(b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question
of law or fact. Statement of Facts and Argument
Sanders’ proposed Intervening Complaint is attached as Exhibit 1. As the court can see from that document, Sanders is in the same position as Plaintiff, Esshaki. Sanders was in the process of gathering the requisite 3000 (minimum) signatures up to the maximum of 6000 signatures, when the COVID-19 pandemic occurred, resulting in the Governor’s Emergency Orders, which, brought Sanders signature gathering efforts to a premature and complete halt. In fact, Sanders risked being criminally charged in an attempt to collect the voluminous three thousand minimum signature requirements for Independent Candidates for the U. S. House of Representatives. (13th Congressional District)
Sanders joins in the Plaintiff’s request for relief to protect her most precious constitutional rights, namely, her right to run for elected office. The actions of the Defendants in refusing to extend the deadline or reduce the amount of signatures to gain access to the ballot for
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nominating petitions in light of the pandemic and the Governor’s Stay at Home orders are unconstitutional, as applied to Intervenor Sanders as an Independent Candidate for Congress. Intervenor Sanders relies on the briefs already submitted to this Court by the Plaintiff and the other intervening parties.
Given that the claim of Sanders is identical to the that of the Plaintiff, Sanders should be allowed to intervene per Fed. R. Civ. P. 24(b)(1)(B) and benefit from any rulings by this Court with regard to the relief granted to the Plaintiff and where Intervenor Sanders desires to join.
Conclusion/Relief Requested Sanders should be permitted to intervene in this action per Fed. R. Civ. P. 24(b)(1)(B) and obtain the same relief as the Court saw fit to grant the Plaintiff Esshaki in his case in chief. Intervenor Sanders is seeking the specific remedy that the Wayne County Clerk be ordered to accept her digital filing of July 16, 2020 which included her Affidavit of Identity and 123 Nominating Petitions as support of Independent Candidacy for the Office of U.S. House of Representatives in the 13th Congressional District of Michigan.
Respectfully Submitted,
BY:_________/s/_B__r_e__n__d_a___K__._S__a__n__d_e__r_s______
Brenda K. Sanders Independent Candidate for Congress in the 13th Congressional District Intervenor in Pro Se P. O. Box 14183 Detroit, Michigan 48214 (313) 685-1096 (803) 991-1137 brendaksanders@outlook.com
Dated: July 25, 2020
7

Case 2:20-cv-10831-TGB-EAS ECF No. 65 filed 07/27/20 PageID.889 Page 8 of 9

ERIC ESSHAKI, as candidate For U.S. Congress and in his Individual capacity; MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position, Wayne County and in her individual capacity;

Case No. 2:20-CV-10831-TGB-EAS HON. TERRENCE G. BERG Magistrate: Elizabeth A. Stafford

Plaintiffs,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

vs.

BRENDA K. SANDERS,

Pro Se Intervenor,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of the State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities; _____________________________________________________________/

CERTIFICATE OF SERVICE

8

Case 2:20-cv-10831-TGB-EAS ECF No. 65 filed 07/27/20 PageID.890 Page 9 of 9 I hereby that on July 25, 2020, I electronically filed the foregoing document with the
Clerk of the Court using the ECF filing system, which will send notification of such filing to all ECF participants and attorneys of record.
_______________/s/_B__r_e__n__d_a___K__._S__a__n__d_e__rs
Brenda K. Sanders
9

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.891 Page 1 of 14

ERIC ESSHAKI, as candidate For U.S. Congress and in his Individual capacity, MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for The Third Circuit Court Judge, Regular Term, Non-Incumbent Position, Wayne County and in her individual capacity,

Case No. 2:20-CV-10831-TGB-EAS HON. TERRENCE G. BERG Ma. Elizabeth A. Stafford

Plaintiff,

vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

and

BRENDA K. SANDERS,

Intervenor in Pro Se, vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, And JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. _____________________________________________________/ Gregory J. Rohl (P39185) Attorney for the Plaintiff 41850 W. Eleven Mile Road Suite 110 Novi, Michigan 48375 (248) 380-5362

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.892 Page 2 of 14
Heather S. Meingast (P55439) Assistant Attorney General Attorneys for Defendants P. O. Box 30736 Lansing, Michigan 48909 (517) 335-7659 Brenda K. Sanders Intervenor in Pro Se P. O. Box 14183 Detroit, Michigan 48214 (313) 685-1096 brendaksanders@outlook.com _____________________________________________________/
PRO SE INTERVENOR’S COMPLAINT FOR EMERGENCY DECLARATORY AND INJUNCTIVE RELIEF FACTS OF THE CASE
1. This is an action to declare unconstitutional, enjoin and/or modify Michigan’s inperson signature collection and witnessing requirements for Independent and Third-Party Candidates in Michigan seeking to qualify for the November 3, 2020 general election in light of the current public health emergency caused by the pandemic, COVID 19 and the Governor’s Emergency Orders effectively shutting down the State of Michigan.
Previous Court Orders in Michigan Reducing Signature Requirements for 2020 Candidates 2. The State of Michigan requires 3000-6000 nominating signatures for an
Independent U.S. Congressional Candidate to be placed on the November 3, 2020 general election ballot. On December 22, 2019, U.S. District Court Judge Victoria A. Roberts struck down the 30,000 signature requirement for Independent Presidential Candidates. Judge Roberts replaced the 30,000 signature requirement with a reduced signature requirement of 12,000. (Graveline v. Benson, e.d., 2:18-cv-12354)
2

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.893 Page 3 of 14

3. Additionally, this instant Honorable Court issued an Order dated April 20, 2020,

allowing for a reduction of signature requirements for “Party Affiliated” Candidates seeking to

gain access to the August 4, 2020 primary election ballot.

PARTIES

4. Pro Se Intervenor, Brenda K. Sanders, is an Independent Candidate for the U. S.

House of Representatives for the 13th Congressional District in Michigan and is seeking to gain

access to the November 3, 2020 general election ballot.

5. Intervenor-Defendants, Gretchen Whitmer, Governor of Michigan; Jocelyn

Benson, Secretary of State for the State of Michigan, and Jonathan Brater, Director of the Michigan

Bureau of Elections, in their official capacities, hereinafter referred to as “Defendants”.

6. At all times relevant to this action, Defendant’s were engaged in state action under

color of state law.

7. Defendants are being sued in their official capacities for declaratory and injunctive

relief under 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 2201, as well as costs pursuant to 42 U.S.C.

Sec. 1988(b).

JURISDICTION

8. Jurisdiction in this case is predicated on 28 U.S.C. Sec. 1331, this being a case

arising under the Constitution of the United States and 42 U.S.C. Sec. 1983.

VENUE

9.

Venue is proper in this District under 28 U.S.C. 1391(b) because a substantial part

of the events giving rise to Plaintiffs’ claims occurred in the Eastern District of Michigan.

3

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.894 Page 4 of 14

FACTS

10. Pro Se Intervenor realleges each and every paragraph in the Plaintiff’s Complaint

as valid and as though fully set forth herein.

IMPOSSIBILITY OF CIRCULATION BY INTERVENOR

11.

As of July 16, 2020, over 5,000 citizens of the State of Michigan have died

during the Covid-19 pandemic.

12. That on March 23, 2020, Governor of the State of Michigan, Gretchen Whitmer,

issued a Stay At Home order which required that residents of Michigan could not go into other

homes or residences and requiring that they stay inside, unless a citizen was going to work in

essential areas. Such a Stay at Home Order significantly hampered and discouraged signature

collection for the purpose of complying with nominating petition requirements.

13. That Governor Whitmer extended the Michigan stay at home order to May 15,

2020 banning the non-essential sales of goods which closed many businesses.

14. That Governor Whitmer’s stay at home order dated May 15, 2020, required that

individuals visiting grocery stores wear a face mask.

15. That Governor Gretchen Whitmer extended her stay at home order which was

scheduled to expire on May 28, 2020, until June 12, 2020.

17. That as a result of the extension Governor Whitmer’s stay at home orders, large

gatherings and many businesses, such as barbershops, sporting and entertainment venues, gyms

and casinos remained closed which are traditional and convenient places to collect signatures were

not available to Independent candidates whose signature filing deadline was July 16, 2020.

18. That on June 1, 2020, Governor Whitmer also modified the state of emergency that

enabled executive orders, including stay at home orders that were extended through June 15, 2020.

4

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.895 Page 5 of 14
19. That to support the extension of the stay at home orders, Governor cited that the coronavirus has sickened more than 54,000 Michigan residents and killed more than 5,100 since March, 2020. Governor Whitmer stated that the virus was still spreading.
18. That on June 1, 2020, Governor Gretchen Whitmer partially lifted Michigan’s stay at home order by loosening restrictions on the operations of business and workplaces and allowed larger outdoor gatherings and outside sporting events with certain restrictions, however it was acknowledged that Wayne County was and still is one of the hardest hit areas in the State of Michigan.
19. That indoor gatherings of more than 10 people remained prohibited and the stay at home order required that people continue to wear face coverings when in enclosed spaces.
21. That Intervenor Sanders, who is an Independent Candidate for the U.S. House of Representatives in the 13th Congressional District, was charged with a significantly higher and a more ponderous burden to collect nominating signatures. Sanders was very restricted in her attempts to collect signatures because of the various stay at home orders and emergency orders.
22. That the Intervenor Sanders actually witnessed prospective voters that believed their lives were in danger if anyone at all approached them and as a result, the prospective voters shunned any contact whatsoever.
23. That due to the COVID-19 outbreak, Intervenor Sanders asserts that she was not able to meet the requirement that she collect the 3000 minimum signatures to 6000 maximum signatures required by Michigan law.
5

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.896 Page 6 of 14
INJURY-IN-FACT RESULTED TO THE INTERVENOR 24. That Michigan, together with COVID-19 outbreak, and the Governor’s orders, directly caused injury-in-fact to Intervenor Sanders and her First and Fourteenth Amendment rights. 25. That Intervenor Sanders’ injuries are related to the Michigan laws requiring in person signature collection for candidates. 26. That this Honorable Court has the power to properly redress Intervenor’s injuries by issuing prospective injunctive and declaratory relief prohibiting enforcement of Michigan’s signature requirements for Independent Candidates for office for the November 3, 2020 general election. 27. That this Honorable Court may redress Intervenor Sanders’ injuries by directing Defendants to accept the 123 nominating petitions digitally filed by Intervenor Sanders with the Office of the Wayne County Clerk on July 16, 2020. 28. That to date, the Intervenor has not received notice that the 1722 nominating petitions she filed with the Wayne County Clerk’s Office were accepted and her name placed on the November 3, 2020 general election ballot. 32. That Intervenor Sanders’ position is that the COVID 19 pandemic has hindered and discouraged signature collection for the total six months preceding the nomination petition deadline submissions and Independent candidates have been prejudiced more than the other party affiliated candidates. 33. That the Governor’s rescission of stay at home orders on June 1, 2020 did not stop the spread of the coronavirus nor the fear of contracting the virus among the prospective voters that may have been asked to sign a nominating petition.
6

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.897 Page 7 of 14
34. That the usual opportunities to collect signatures for nominating petitions during the spring and summer months have been significantly and substantially curtailed.
35. That additionally, many of the venues frequented by Intervenor Sanders to acquire signatures, such as churches, barbershops, concert venues and sports events are still prohibited from opening for business or allowing crowds to gather.
36. That even the Free Press marathon has been cancelled in Detroit, Michigan due to the coronavirus outbreak.
37. That political conventions, a normal venue to collect nominating signatures, have been cancelled in the State of Michigan and in the United States at large.
38. That Intervenor Sanders is a musician and ALL of the usually relied upon and scheduled music related events were cancelled until 2021 in Metro-Detroit due to the COVID-19 outbreak.
39. That after this Honorable Court’s April 20, 2020 Order, Intervenor Sanders actually attempted to solicit signatures via emails and on other social media platforms, however, the process was slow and complicated and hence, unsuccessful.
40. That on June 1, 2020, the Intervenor personally petitioned Governor Whitmer to amend her executive order to allow the Wayne County Clerk to accept a reduced number of signatures in order to qualify for the November 3, 2020 general election ballot.
41. That despite Governor’s Gretchen Whitmer’s attempts to reopen the State of Michigan and rescind stay at home orders, Michigan reported 699 new coronavirus cases on July 24, 2020.
7

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.898 Page 8 of 14
42. That as of July 24, 2020, a total of 6,141 deaths were calculated at the end of the period for Intervenor to file her nominating petitions and therefore, signature collection has been hampered and hindered by fear of contracting the coronavirus.
FIRST CAUSE OF ACTION First Amendment
43. That each and every paragraph listed above is incorporated herein as though fully set forth herein.
44. Under present circumstances, Michigan’s ballot-access requirements for Independent Candidates and new party candidates for U.S. House of Representatives violate rights guaranteed to Intervenor Sanders by the First and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. Sec. 1983.
45. A real and actual controversy exist between the parties. 46. Intervenor Sanders has no adequate remedy at law other than this action of declaratory and equitable relief. 47. Intervenor Sanders is suffering irreparable harm as a result of the violations complained of herein, and that harm will continue, unless declared unlawful and enjoined by this Court.
SECOND CAUSE OF ACTION Fourteenth Amendment Equal Protection Clause 48. All previous paragraphs are incorporated and referenced as though fully set forth herein. 49. Under present circumstances, Michigan’s ballot-access requirements for Independent Candidates for U. S. House of Representatives violate rights guaranteed to Intervenor
8

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.899 Page 9 of 14
by the Equal Protection Clause of the Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. Sec. 1983.
50. A real and actual controversy exists between the parties. 51. Intervenor Sanders has no adequate remedy at law other than this action for declaratory ad equitable relief. 52. Intervenor Sanders is suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
DEMAND FOR RELIEF 53. WHEREFORE, the Intervenor respectfully prays that this Court: (1) Assume original jurisdiction over this case; (2) Issue a temporary restraining order and/or preliminary injunction (1) prohibiting enforcement of Michigan’s supporting signature requirements for Independent candidates for office for Michigan’s November 3, 2020 general election; (ii) directing Defendants to accept Intervenor Brenda K. Sanders’ nominating petitions for the November 3, 2020 general election without requiring the standard supporting signatures from voters; and (iii) directing Defendants to place Intervenor Sanders’ name on the Michigan November 3, 2020 general election ballot. (3) Issue a declaratory judgment stating that, in light of the current health emergency caused by COVID-19 and executive orders requiring the Michigan citizens to stay at home and to shelter in place, to forego going to church, concerts, sports and other venues, that Michigan’s supporting signature requirements for Independent Candidates for office cannot be constitutionally enforced under the First and Fourteenth Amendments, that Defendants must accordingly accept Intervenor Sanders’ nominating papers for the November 3, 2020 general election ballot without
9

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.900 Page 10 of 14

requiring supporting signatures from voters, and that Defendants must accordingly place Intervenor Sanders’ name on the Michigan November 3, 2020 general election ballot.
(4) Issue a permanent injunction (i) prohibiting enforcement of Michigan’s supporting signature requirements for candidates for office for Michigan’s November 3, 2020 general election; (ii) directing Defendants to accept Intervenor Sanders’ nominating papers for the November 3, 2020 general election without requiring supporting signatures from voters and (iii) directing Defendants to place Intervenor Sanders’ name on the Michigan November 3, 2020 general election ballot.
(6) Retain jurisdiction over this matter and order Defendants to provide to Intervenor Sanders any additional relief the Court deems just.
(7) Finally, render relief that is commensurate with this Honorable Court’s April 20, 2020 Order as it relates to Intervenor Sanders.
Respectfully Submitted,

Dated: July 25, 2020

BY:_/_s_/ _B_re_n_d_a_K__. _S_a_n_de_r_s_______________________ Brenda K. Sanders Independent Candidate for Congress in the 13th Congressional District Intervenor in Pro Se P. O. Box 14183 Detroit, Michigan 48214 (313) 685-1096 (803) 991-1137 brendaksanders@outlook.com

10

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.901 Page 11 of 14

ERIC ESSHAKI, as candidate For U.S. Congress and in his Individual capacity, MATT SAVICH, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; DEANA BEARD, as candidate for The Third Circuit Court Judge, Regular Term, Non-Incumbent Position, Wayne County and in her individual capacity,

Case No. 2:20-CV-10831-TGB-EAS HON. TERRENCE G. BERG Ma. Elizabeth A. Stafford

Plaintiff, vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants.

and

BRENDA K. SANDERS,

Intervenor, vs.

GRETCHEN WHITMER, Governor of Michigan, JOCELYN BENSON, Secretary of State of Michigan, And JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,

Defendants. _____________________________________________________/ Gregory J. Rohl (P39185) Attorney for the Plaintiff 41850 W. Eleven Mile Road Suite 110 Novi, Michigan 48375 (248) 380-5362

11

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.902 Page 12 of 14
Heather S. Meingast (P55439) Assistant Attorney General Attorneys for Defendants P. O. Box 30736 Lansing, Michigan 48909 (517) 335-7659 Brenda K. Sanders Intervenor in Pro Se P. O. Box 14183 Detroit, Michigan 48214 (313) 685-1096 brendaksanders@outlook.com _____________________________________________________/
CERTIFICATE OF SERVICE I hereby that on July 25, 2020, I electronically filed the foregoing document with the Clerk of the Court using the ECF filing system, which will send notification of such filing to all ECF participants and attorneys of record.
_______________/s/_B_r_e_n_d_a_K_._S_a_n_d_e_r_s_________ Brenda K. Sanders
12

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.903 Page 13 of 14 13

Case 2:20-cv-10831-TGB-EAS ECF No. 65-1 filed 07/27/20 PageID.904 Page 14 of 14 14

Case 2:20-cv-10831-TGB-EAS ECF No. 65-2 filed 07/27/20 PageID.905 Page 1 of 2

AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

UNITED STATES DISTRICT COURT
for the
___E__a_st_e_r_n_DDiissttrriicctt ooff _M_i_c_h_i_g_a_n__

Brenda K. Sanders
Plaintiff/Petitioner v.
Gretchen Whitmer, et. al.
Defendant/Respondent

) ) ) Civil Action No. 2:20-cv-10831 ) )

APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.

In support of this application, I answer the following questions under penalty of perjury:

1. If incarcerated. I am being held at:

.

If employed there, or have an account in the institution, I have attached to this document a statement certified by the

appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any

institutional account in my name. I am also submitting a similar statement from any other institution where I was

incarcerated during the last six months.

2. If not incarcerated. If I am employed, my employer’s name and address are:

Not applicable

My gross pay or wages are: $

, and my take-home pay or wages are: $

per

(specify pay period)

.

3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):

(a) Business, profession, or other self-employment (b) Rent payments, interest, or dividends (c) Pension, annuity, or life insurance payments (d) Disability, or worker’s compensation payments (e) Gifts, or inheritances (f) Any other sources

’ Yes ’ Yes ’ Yes ’ Yes ’ Yes ’ Yes

’ No ’ No ’ No ’ No ’ No ’ No

If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
Social Security Disability Benefits 1,459.40

Case 2:20-cv-10831-TGB-EAS ECF No. 65-2 filed 07/27/20 PageID.906 Page 2 of 2
AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

4. Amount of money that I have in cash or in a checking or savings account: $

13.00 .

5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else’s name (describe the property and its approximate value): Automobile = 1,500.00 Artwork = Not liquidated nor appraised. I do not know value. Harp = Not liquidated or appraised. I do not know the value.

6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide tIhesahmaoruentthoef thoewmnoenrtshhlyipexopfenmsey):home. I am guessing, but the value should be around $150,000. loan payment = 80.00 electric utility = 250.00 cell phone = 120..00 medicine = 70.00 gasoline = 200.00 automobile insurance = 114.00
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support: Tunzy Sanders = I contribute 50.00 to 80.00 per month (incarcerated)

8. Any debts or financial obligations (describe the amounts owed and to whom they are payable): Farners Home Furniture = 80.00 monthly

Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims.

Date:

07/25/2020

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Brenda K. Sanders
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 Case 2:20-cv-10831-TGB-EAS ECF No. 66 filed 07/30/20 PageID.907 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI,
Plaintiff;
MATT SAVICH, DEANA BEARD, and SHAKIRA HAWKINS,
Plaintiff-Intervenors,
vs.
GRETCHEN WHITMER, Governor of Michigan; JOCELYN BENSON, Secretary of State of Michigan; and JONATHAN BRATER, Director of the Michigan Bureau of Elections, in their official capacities,
Defendants.

2:20-CV-10831-TGB
ORDER DENYING MOTION TO INTERVENE

On July 27, 2020, Brenda K. Sanders filed a motion to intervene in this matter. ECF No. 65. Ms. Sanders is an independent candidate for United States Congress in Michigan’s Thirteenth Congressional District. Id. Ms. Sanders seeks a place on the November 3, 2020 general election ballot. Id. Ms. Sanders contends that she suffered the same injury as the other Plaintiffs in this case and that intervention is warranted. Id.

Case 2:20-cv-10831-TGB-EAS ECF No. 66 filed 07/30/20 PageID.908 Page 2 of 3
Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), the Court has discretion to allow a party to intervene if that person “has a claim or defense that shares with the main action a common question of law or fact.” Applying this rule to Ms. Sanders’ proposed complaint, the Court finds that intervention would be inappropriate in this case for a number of reasons. First, unlike the Plaintiffs in this case, who sought to alter the requirements for the August 4th primary, Ms. Sanders “seeks the remedy of extending the filing deadline or decreasing the number of requisite signatures for the November 3, 2020 general election ballot.” Id. at PageID.885. None of the other Plaintiffs in this case had filed claims seeking to alter requirements for the November 3rd general election.1 Ms. Sanders’ suit seeks a remedy different from that which was sought by all other Plaintiffs in this case. Second, an adjudication of Ms. Sanders’ claims would require the Court to undergo a fact-intensive analysis of the burdens placed on Ms. Sanders by State action in the period between April 21, 2020 and July 16, 2020—a time period
1 At least one other court in this district has analyzed the burdens placed on candidates seeking a place on the November general election ballot subject to the July 16, 2020 signature deadline. See Kishore v. Whitmer, No. 20-11605, 2020 WL 3819125 (E.D. Mich. July 8, 2020).
2

Case 2:20-cv-10831-TGB-EAS ECF No. 66 filed 07/30/20 PageID.909 Page 3 of 3
completely different from the time period that was at issue in the original case and which is irrelevant to the claims of all other Plaintiffs in this matter. Thus, the claims of Ms. Sanders do not share the same issues of fact and law as the main action.
Moreover, allowing intervention would potentially delay the adjudication of the original parties’ claims in this matter, many of which have been nearly resolved as a result of the Court’s previous orders. The Court therefore finds that intervention by Ms. Sanders should not be permitted. Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B) and (3), the motion to intervene (ECF No. 65) is DENIED.
IT IS SO ORDERED. DATED this 30th day of July, 2020.
BY THE COURT: /s/Terrence G. Berg TERRENCE G. BERG United States District Judge
3

 
 Case 2:20-cv-10831-TGB-EAS ECF No. 71 filed 09/02/20 PageID.933 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC ESSHAKI, Plaintiff,
MATT SAVICH, DEANA BEARD, and SHAKIRA HAWKINS,
Plaintiff-Intervenors, vs. GRETCHEN WHITMER, et al.,
Defendants.

2:20-CV-11067-TGB ORDER OF DISMISSAL

The plaintiff filed his complaint regarding the State of Michigan’s

ballot-access provisions on March 31, 2020. ECF No. 1. He and the

plaintiff-intervenors sought declaratory and injunctive relief under 42

U.S.C. § 1983 that would allow them to appear on Michigan’s August 4,

2020 primary ballot. Id. at PageID.3; ECF No. 11, PageID.175; ECF No.

47, PageID.704-05. They also sought attorney’s fees under 42 U.S.C. §

1988. Id. As this litigation continued, the State adopted a series of

accommodations regarding ballot access in light of the COVID-19

pandemic. May 8, 2020 Special Announcement, Mich. Sec’y of State,

https://www.michigan.gov/sos/0,4670,7-127--526366--,00.html.

The

August 4, 2020 primary subsequently went ahead as scheduled.

1

Case 2:20-cv-10831-TGB-EAS ECF No. 71 filed 09/02/20 PageID.934 Page 2 of 3
This Court issued a show-cause order inviting parties to explain prior to August 24, 2020 why this case should not be dismissed as moot, given that the focus of their request for relief was the primary election, and that election has now passed. As of August 31, 2020, this Court has not received any response from Plaintiff Esshaki. Plaintiff-Intervenors Savich and Hawkins state that dismissal is appropriate as long as it is without prejudice to their right to seek attorney’s fees under 42 U.S.C. § 1988. ECF Nos. 69, 70.
Prevailing parties in an action under 42 U.S.C. 1983 can recover attorney’s fees. 42 U.S.C. § 1988(b). A party receiving “at least some relief on the merits of his claim” qualifies as a prevailing party. Farrar v. Hobby, 506 U.S. 103, 111 (1992). The relief secured must “directly benefit” the plaintiff at the time of the judgment, generally by requiring the defendant to modify their behavior to the plaintiff’s benefit. Id.
Here, this Court granted a preliminary injunction that prevented the State from enforcing its ballot-access provisions against the plaintiff and plaintiff-intervenors. ECF No. 23. This allowed them to eventually appear on the ballot, which was the ultimate benefit they sought. This preliminary injunction was upheld on appeal by the Sixth Circuit. ECF No. 45, PageID.663; ECF No. 64, PageID.880. The plaintiff-intervenors may therefore be able to qualify as “prevailing parties” under 42 U.S.C. 1988 and are eligible to apply for attorney’s fees.
2

Case 2:20-cv-10831-TGB-EAS ECF No. 71 filed 09/02/20 PageID.935 Page 3 of 3
WHEREFORE, it is HEREBY ORDERED that the case be DISMISSED with prejudice regarding all claims except those for attorney’s fees. The Court retains jurisdiction solely for the purposes of these claims, and parties who wish to file requests for attorney’s fees have 14 days to do so. Fed. R. Civ. P. 54(d)(2)(B)(i).
SO ORDERED, this 2nd day of September, 2020. BY THE COURT: s/Terrence G. Berg TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
3

 
 Case 2:20-cCva-1s0e8: 3210-T1G33B6-EADSocEuCmFenNto: .272-1 fileFdile0d9:/0099//2009/20P2a0geIDP.9a3g6e: 1Page 1 of 4 (1 of 4)

No. 20-1336
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERIC ESSHAKI, Plaintiff-Appellee,
MATT SAVICH; DEANA BEARD, Intervenors-Appellees,
v. GRETCHEN WHITMER, et al.,
Defendants-Appellants.

)

FILED
Sep 09, 2020

)

DEBORAH S. HUNT, Clerk

)

)

)

)

)

)

)

O R D E R

)

)

)

)

Before: BATCHELDER, STRANCH, and BUSH, Circuit Judges.
On July 22, 2020, appellants filed a motion to remand, requesting that we instruct the district court to dismiss this case for mootness and vacate the opinion below and the panel’s opinion. Appellants point out that candidates eligible to appear on the primary ballot were certified on May 29, 2020; plaintiff-appellee Eric Esshaki and intervenors-appellees Matt Savich and Deana Beard were all certified. Michigan’s primary election was held on August 4, 2020. Appellants contend that the issues regarding access to the primary ballot are no longer live, and the case is therefore moot. In accordance with the doctrine established in United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), appellants request that this case be remanded with instructions that it be

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dismissed with prejudice and that the panel opinion and order be vacated. Savich filed the only response to the motion, asking that any disposition of the case be without prejudice to his right to seek attorney’s fees pursuant to 42 U.S.C. § 1988.
Because the appellees received the relief they sought and were ultimately certified as candidates on the primary ballot, they “‘lack a legally cognizable interest in the outcome’” of litigation around the district court’s preliminary injunction. Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Given that the primary has already occurred, the issues in the suit no longer “persist in ‘definite and concrete’ form. . . .” Mosley v. Hairston, 920 F.2d 409, 414 (6th Cir. 1990) (quoting DeFunis v. Odegaard, 416 U.S. 312, 317 (1974)). There are no “live” issues for review.
In these circumstances, our practice is to vacate the judgment below and remand with instructions to dismiss. Libertarian Party of Ohio v. Husted, 497 F. App’x 581, 583 (6th Cir. 2012) (“When a civil case becomes moot pending appellate adjudication, the well-established Munsingwear doctrine directs us to vacate the judgment below and remand with a direction to dismiss.”); Munsingwear, 340 U.S. at 39. “Vacatur is in order when,” as here, “mootness occurs through. . . circumstances not attributable to the parties [or] the ‘unilateral action of the party who prevailed in the lower court.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 71─72 (1997) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall P’Ship, 513 U.S. 18, 23 (1994)).
We GRANT the motion to remand and direct the district court to dismiss the case. Our direction is without prejudice to Savich’s ability to seek attorney’s fees. Libertarian Party, 497 F. App’x at 583 (noting after remanding that the “case-specific inquiry” into entitlement to attorney’s

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fees under 42 U.S.C. § 1988 “is best left in the first instance to the district court.”). We vacate the district court’s opinion and the panel opinion.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 09, 2020

Eric Esshaki Law Office 1731 Hazel Street Birmingham, MI 48009
Ms. Heather S. Meingast Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Re: Case No. 20-1336, Eric Esshaki v. Gretchen Whitmer, et al Originating Case No. : 2:20-cv-10831
Dear Counsel,
The Court issued the enclosedMs. Order today in this case.
Sincerely yours,

cc: Ms. Deana Beard Mr. Michael S. Cafferty Mr. Erik A. Grill Mr. David J. Weaver
Enclosure
No mandate to issue

s/Jill E Colyer Case Manager Direct Dial No. 513-564-7024