CLOSED,APPEAL,LR11.2_NOTICE
U.S. District Court Eastern District of Michigan (Flint) CIVIL DOCKET FOR CASE #: 4:20-cv-11246-MFL-MJH

SawariMedia LLC et al v. Whitmer et al Assigned to: District Judge Matthew F. Leitman Referred to: Magistrate Judge Michael J. Hluchaniuk Case in other court: U.S. Court of Appeals - Sixth
Circuit, 20-01594 Cause: No cause code entered

Date Filed: 05/04/2020 Date Terminated: 10/19/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff SawariMedia LLC

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

Plaintiff Deborah Parker

represented by Deborah Parker 21908 Gaukler Street St. Clair Shores, MI 48080 313-550-2081 PRO SE

Plaintiff Judy Kellogg

represented by Judy Kellogg 2450 Krouse Road Lot # 337 Owosso, MI 48867 989-277-3228 PRO SE

Plaintiff Paul Ely

represented by Paul Ely 12646 North Red Bud Buchanan, MI 49107 269-635-1611 PRO SE

V. Defendant Gretchen Whitmer Governor of Michigan
Defendant Jocelyn Benson Secretary of State of Michigan
Defendant Jonathan Brater Director of the Michigan Bureau of Elections

represented by Erik A. Grill Michigan Department of Attorney General Civil Litigation, Employment & Elections Division PO Box 30736 Lansing, MI 48909 517-335-7659 Email: grille@michigan.gov ATTORNEY TO BE NOTICED
Heather S. Meingast MI Dept of Attorney General Clee P.O. Box 30736 Lansing, MI 48909 517-335-7659 Email: meingasth@michigan.gov ATTORNEY TO BE NOTICED
represented by Erik A. Grill (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
represented by Erik A. Grill (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/04/2020

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants Receipt No: Not Issued Yet - Fee: $ 400. (Attachments: # 1 Copy of Money Order) [Post Mark Date is the File Date] (Entered: 05/20/2020)

05/04/2020 05/04/2020 05/20/2020 05/21/2020 05/21/2020 05/21/2020
05/27/2020
05/27/2020 05/27/2020 05/27/2020

MOTION for Temporary Restraining Order and/or Preliminary

2

Injunction by All Plaintiffs. [Post Mark Date is the File Date] (ATee)

(Entered: 05/20/2020)

FILING FEE Received in the amount of 400.00 by All Plaintiffs Receipt No. DET131351 [No Image Associated with this docket entry] (RBog) (Entered: 08/19/2020)

3 SUMMONS Issued for *Jocelyn Benson, Jonathan Brater, Gretchen Whitmer* (ATee) (Entered: 05/20/2020)

5 Notice Regarding Parties' Responsibility to Notify Court of Address Changes (KCas) (Entered: 05/21/2020)

6 NOTICE TO APPEAR BY TELEPHONE: TELEPHONIC Status Conference set for 5/21/2020 at 4:00 PM before District Judge Matthew F. Leitman. **PLEASE USE THE CALL-IN INFORMATION PROVIDED VIA EMAIL AND IN THIS NOTICE TO JOIN THE CALL** (HMon) (Entered: 05/21/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Telephonic Status Conference held on 5/21/2020. Defendants to file response to Plaintiffs' motion for a temporary restraining order and/or preliminary injunction (ECF No. 2) by no later than 5:00 p.m. on May 27, 2020. Plaintiffs may file a reply brief by no later than 5:00 p.m. on June 1, 2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 05/21/2020)

7 RESPONSE to 2 MOTION for Temporary Restraining Order filed by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer.

(Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Declaration of Jonathan Brater, # 3 Exhibit B. Thompson v DeWine) (Grill, Erik) (Entered: 05/27/2020)
8 Ex Parte MOTION for Leave to File Excess Pages in Response to Motion for TRO/Prelminary Injunction by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Grill, Erik) (Entered: 05/27/2020)
TEXT-ONLY ORDER Granting 8 Ex Parte MOTION for Leave to File Excess Pages in Response to Motion for TRO/Prelminary Injunction filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer. Signed by District Judge Matthew F. Leitman. (HMon) (Entered: 05/27/2020)
9 NOTICE of Appearance by Heather S. Meingast on behalf of Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 05/27/2020)

05/28/2020
06/01/2020 06/01/2020 06/01/2020 06/02/2020 06/04/2020 06/04/2020 06/04/2020 06/04/2020 06/05/2020

10 NOTICE OF ZOOM HEARING on 2 MOTION for Temporary Restraining Order. Zoom Motion Hearing set for 6/5/2020 at 10:00 AM before District Judge Matthew F. Leitman. **THE HEARING WILL TAKE PLACE VIA ZOOM. PLEASE USE THE LINK PROVIDED BY THE COURT TO JOIN THE HEARING** (HMon) (Entered: 05/28/2020)
11 NOTICE of Appearance by Saura J. Sahu on behalf of SawariMedia LLC. (Sahu, Saura) (Entered: 06/01/2020)
12 REPLY to Response re 2 MOTION for Temporary Restraining Order , Preliminary Injunction and Permanent Injunction filed by SawariMedia LLC. (Sahu, Saura) (Entered: 06/01/2020)
13 Ex Parte MOTION Extension of Page Limit re 12 Reply to Response to Motion for TRO/PI by SawariMedia LLC. (Sahu, Saura) (Entered: 06/01/2020)
TEXT-ONLY ORDER Granting 13 Ex Parte MOTION Extension of Page Limit re 12 Reply to Response to Motion for TRO/PI filed by SawariMedia LLC. Signed by District Judge Matthew F. Leitman. (HMon) (Entered: 06/02/2020)
14 NOTICE by SawariMedia LLC re 12 Reply to Response to Motion of Intent to Rely on Authority: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S. Ct. 1211, 1219(2006) (Sahu, Saura) (Entered: 06/04/2020)
15 MOTION for Leave to File Sur-Reply to Plaintiffs' Reply in Support of their Motion for TRO/Preliminary Injunction by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 06/04/2020)
TEXT-ONLY ORDER Granting 15 MOTION for Leave to File SurReply to Plaintiffs' Reply in Support of their Motion for TRO/Preliminary Injunction filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer. Signed by District Judge Matthew F. Leitman. (HMon) (Entered: 06/04/2020)
16 SUR-REPLY re 2 MOTION for Temporary Restraining Order filed by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Meingast, Heather) (Entered: 06/04/2020)
Minute Entry for proceedings before District Judge Matthew F.
Leitman: Zoom Motion Hearing held on 6/5/2020 re 2 MOTION for Temporary Restraining Order filed by Paul Ely, Judy Kellogg, Deborah Parker, SawariMedia LLC. Disposition: Motion Taken Under

06/11/2020 06/15/2020 06/16/2020
06/16/2020
06/16/2020 06/16/2020
06/16/2020 06/18/2020 06/19/2020 06/22/2020 06/23/2020

Advisement. (Court Reporter: Peg Goodrich) (HMon) (Entered: 06/05/2020)

17

OPINION AND ORDER Granting Plaintiffs' 2 Motion for a

Preliminary Injunction. Signed by District Judge Matthew F. Leitman.

(HMon) (Entered: 06/11/2020)

18 NOTICE by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer State Defendants' Notice of Proposed Remedy (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Fair & Equal Opinion and Order) (Meingast, Heather) (Entered: 06/15/2020)

19 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 6/16/2020 at 12:00 PM before District Judge Matthew F. Leitman. **PLEASE USE THE LINK PROVIDED BY THE COURT TO JOIN THE CONFERENCE** (HMon) (Entered: 06/16/2020)

20 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference RESET for 6/16/2020 at 2:00 PM before District Judge Matthew F. Leitman. **PLEASE USE THE LINK PROVIDED BY THE COURT TO JOIN THE CONFERENCE** (HMon) (Entered: 06/16/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Zoom Video Status Conference held on 6/16/2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 06/16/2020)

21 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 6/22/2020 at 4:00 PM before District Judge Matthew F. Leitman. **PLEASE USE THE LINK PROVIDED BY THE COURT TO JOIN THE CONFERENCE** (HMon) (Entered: 06/16/2020)

ORDER on Status Conference. Signed by District Judge Matthew F.

22

Leitman. (HMon) (Entered: 06/16/2020)

23 NOTICE by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer Second Notice of Proposed Remedy (Grill, Erik) (Entered: 06/18/2020)

24 SUPPLEMENTAL BRIEF re 23 Notice (Other) Plaintiff SawariMedia LLC's Objections to State Defs.' Second Notice of Proposed Remedy filed by SawariMedia LLC. (Sahu, Saura) (Entered: 06/19/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Video Status Conference held on 6/22/2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 06/23/2020)

ORDER Rejecting 23 Second Notice of Proposed Remedy. Signed by

25

District Judge Matthew F. Leitman. (HMon) (Entered: 06/23/2020)

06/23/2020 06/23/2020 06/23/2020
06/23/2020 06/23/2020 06/24/2020 06/24/2020 07/02/2020 07/02/2020 07/02/2020 07/07/2020 07/07/2020

26 NOTICE OF APPEAL by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. Receipt No: AMIEDC-7881707 - Fee: $ 505 - Fee Status: Fee Paid. (Meingast, Heather) (Entered: 06/23/2020)

27 Certificate of Service re 26 Notice of Appeal. (SKra) (Entered: 06/23/2020)

28 TRANSCRIPT of VIDEO STATUS CONFERENCE held on June 22, 2020. (Court Reporter: Peg L. Goodrich) (Number of Pages: 17) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 7/14/2020. Redacted Transcript Deadline set for 7/24/2020. Release of Transcript Restriction set for 9/21/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Goodrich, P) (Entered: 06/23/2020)

29 CERTIFICATE OF SERVICE re 26 Notice of Appeal by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer (Meingast, Heather) (Entered: 06/23/2020)

30 Emergency MOTION to Stay by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer. (Grill, Erik) (Entered: 06/23/2020)

31 RESPONSE to 30 Emergency MOTION to Stay filed by SawariMedia LLC. (Sahu, Saura) (Entered: 06/24/2020)

ORDER Denying Defendants' 30 Emergency Motion for a Stay

32

Pending Emergency Appeal. Signed by District Judge Matthew F.

Leitman. (HMon) (Entered: 06/24/2020)

33 ORDER from U.S. Court of Appeals - Sixth Circuit re 26 Notice of Appeal filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer [Appeal Case Number 20-1594] (DWor) (Entered: 07/02/2020)

ORDER Setting Schedule for New Proposed Remedy. Signed by

34

District Judge Matthew F. Leitman. (HMon) (Entered: 07/02/2020)

35 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/13/2020 at 9:00 AM before District Judge Matthew F. Leitman. (HMon) (Entered: 07/02/2020)

36 STATEMENT of State Defendants' Statement Regarding Additional Proposed Remedy by Jocelyn Benson, Jonathan Brater, Gretchen Whitmer (Grill, Erik) (Entered: 07/07/2020)

37 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/8/2020 at 12:00 PM before District Judge Matthew F. Leitman. (HMon) (Entered: 07/07/2020)

07/08/2020
07/08/2020 07/13/2020 07/13/2020 07/13/2020 07/17/2020 07/23/2020 07/23/2020 07/23/2020 08/05/2020 08/05/2020 08/19/2020 09/18/2020

Minute Entry for proceedings before District Judge Matthew F. Leitman: Video Status Conference held on 7/8/2020. Plaintiffs to submit update on signature collection as described on the record by 9:00 a.m. on Monday, July 13, 2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 07/08/2020)

38 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/13/2020 at 9:00 AM before District Judge Matthew F. Leitman. (HMon) (Entered: 07/08/2020)

39 NOTICE by SawariMedia LLC of Supplemental Filing (Sahu, Saura) (Entered: 07/13/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Video Status Conference held on 7/13/2020. (Court Reporter: Peg Goodrich) (MacKay, K) (Entered: 07/13/2020)

40 ORDER from U.S. Court of Appeals - Sixth Circuit re 26 Notice of Appeal filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer [Appeal Case Number 20-1594] (TTho) (Entered: 07/14/2020)

ORDER Concerning Defendants' Lack of a Submission of a Proposed

41

Remedy. Signed by District Judge Matthew F. Leitman. (HMon)

(Entered: 07/17/2020)

NOTICE by SawariMedia LLC of Second Declaration of Amani

42

Sawari (Sahu, Saura) (Entered: 07/23/2020)

NOTICE of Voluntary Dismissal by All Plaintiffs (Sahu, Saura)

43

(Entered: 07/23/2020)

44 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 8/5/2020 at 10:00 AM before District Judge Matthew F. Leitman. (HMon) (Entered: 07/23/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Video Status Conference held on 8/5/2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 08/05/2020)

45 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 8/19/2020 at 1:30 PM before District Judge Matthew F. Leitman. (HMon) (Entered: 08/05/2020)

Minute Entry for proceedings before District Judge Matthew F. Leitman: Video Status Conference held on 8/19/2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 08/19/2020)

46 NOTICE TO APPEAR BY TELEPHONE: TELEPHONIC Status Conference set for 9/22/2020 at 9:30 AM before District Judge Matthew F. Leitman. **PLEASE USE THE CALL-IN INFORMATION PROVIDED IN THIS NOTICE TO JOIN THE CALL** (HMon) (Entered: 09/18/2020)

09/22/2020 09/22/2020 09/22/2020 10/16/2020
10/19/2020 10/19/2020 12/09/2020

Minute Entry for proceedings before District Judge Matthew F. Leitman: Telephonic Status Conference held on 9/22/2020. (Court Reporter: Peg Goodrich) (HMon) (Entered: 09/22/2020)

47 ORDER to Show Cause Why Preliminary Injunction Should Not Be Vacated. Show Cause Response due by 10/2/2020. Signed by District Judge Matthew F. Leitman. (HMon) (Entered: 09/22/2020)

48 CERTIFICATE OF SERVICE re 47 Order to Show Cause by SawariMedia LLC (Sahu, Saura) (Entered: 09/22/2020)

49 TRANSCRIPT of MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION held on June 5, 2020. (Court Reporter: Peg L. Goodrich) (Number of Pages: 62) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/6/2020. Redacted Transcript Deadline set for 11/16/2020. Release of Transcript Restriction set for 1/14/2021. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Goodrich, P) (Entered: 10/16/2020)

50 ORDER Vacating 47 Order to Show Cause, 17 Order on Motion for TRO. Signed by District Judge Matthew F. Leitman. (DTof) (Entered: 10/19/2020)

TEXT-ONLY CERTIFICATE OF SERVICE re 50 Order to Vacate on Paul Ely, Judy Kellogg, Deborah Parker at addresses listed on docket sheet. (DTof) (Entered: 10/19/2020)

ORDER from U.S. Court of Appeals - Sixth Circuit re 26 Notice of

51

Appeal filed by Jonathan Brater, Jocelyn Benson, Gretchen Whitmer

[Appeal Case Number 20-1594] (TTho) (Entered: 12/09/2020)

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 Case 4:20-cv-11246-MFL-MJH ECF No. 7 filed 05/27/20 PageID.104 Page 1 of 41

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAHL PARKER, JUDY KELLOGG and PAUL ELY,
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,

No. 20-11246
HON. MATTHEW F. LEITMAN
MAGISTRATE MICHAEL J. HLUCHANIUK
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR TRO/PRELMINARY INJUNCTION

Defendants.

Amani Sawari, In Pro Per P.O. Box 2278 Detroit, Michigan, 48202 248.795.0886 amanisawari@gmail.com

Deborah Parker, In Pro Per 21908 Gaukler Street St. Clair Shores, Michigan 48080 313.550.2081 alinosi@yahoo.com

Judy Kellogg, In Pro Per 2450 Krouse Road, Lot #337 Owosso, Michigan 48867 989.277.3228 judykellogg95@gmail.com

Paul Ely, In Pro Per 12646 North Red Bud Buchanan, Michigan 49107 269.635.1611 tlc.greenyard@yahoo.com

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

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TABLE OF CONTENTS Page
Table of Contents ...................................................................................................... ii Index of Authorities ................................................................................................. iv Concise Statement of Issues Presented .................................................................. viii Introduction ................................................................................................................1 Statement of Facts......................................................................................................1
A. The Governor’s declaration of emergency and other executive orders. ....................................................................................................1
B. General requirements for initiative petitions in Michigan ....................4 C. Requirements and timeline for initiatives for the November
2020 general election.............................................................................5 D. Procedural History.................................................................................7 Argument....................................................................................................................8 I. Plaintiffs’ motion for a temporary restraining order should be denied where they have not shown a likelihood of success on the merits of their claims or imminent irreparable harm. .....................................................8 A. Temporary or preliminary injunction factors........................................8 B. Plaintiffs have not shown a strong likelihood of success on the
merits of their First and Fourteenth Amendment claims. .....................9 A. Plaintiffs are unlikely to succeed because their claims are
barred by the doctrine of laches. .................................................9 B. Plaintiffs are unlikely to succeed on the merits of their
First and Fourteenth amendment claims. ..................................13 1. The burden on Plaintiffs is not severe. .....................................16 2. The State’s interest in the signature and deadline
requirements is substantial. .......................................................19 ii

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C. Plaintiffs have not shown they will suffer irreparable harm absent an injunction.............................................................................24
D. The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest.........................................27
E. Request if the Court is inclined to grant injunctive relief. ..................29 Conclusion and Relief Requested ............................................................................32 Certificate of Service ...............................................................................................33
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INDEX OF AUTHORITIES
Cases Abbott v. Perez, 138 S. Ct. 2305 (2018) ..................................................................25 American Party of Texas v. White, 415 U.S. 767 (1974).........................................21 Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................. 15, 19 Brown-Graves Co. v. Central States, Southeast and Southwest Areas
Pension Fund, 206 F.3d 680 (6th Cir. 2000) .........................................................9 Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182
(1999) ....................................................................................................................14 Burdick v. Takushi, 504 U.S. 428 (1992).......................................................... 15, 19 Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535
(6th Cir. 2007) ......................................................................................................24 Cf. Tennessee Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442 (6th Cir.
2009) .......................................................................................................................8 Citizens Protecting Michigan’s Constitution v. Sec’y of State, 921 N.W.2d
247 (2018).............................................................................................................21 Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir.
2006) .....................................................................................................................25 Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot
Bd., 885 F.3d 443 (6th Cir. 2018) ........................................................................15 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)..................................20 Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016) ..............................................11 Esshaki, et al. v. Whitmer, et al., 2020 U.S. App. LEXIS 14376 ..................... 30, 31 Fair and Equal Michigan, et al. v. Secretary of State, et al., Court of Claims
Case No. 20-000095-MM.....................................................................................22
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Graveline, et al v. Benson, et al., 336 F. Supp. 3d 801 (E.D. Mich. 2018).............14 Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir. 2011) .........................19 Green Party of Tenn. v. Hargett (Hargett I), 767 F.3d 533 (6th Cir. 2014) ...........15 In re De Lorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)......................................9 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) .......................23 Jenness v. Forton, 403 U.S. 431 (1971) ..................................................................21 John Doe No. 1 v. Reed, 561 U.S. 186 (2010).........................................................14 Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F. Supp.2d 853 (S.D.
Ohio 2008)..............................................................................................................9 Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000)....................................................9 Libertarian Party of Ky v. Grimes, 835 F.3d 570 (6th Cir. 2016)...........................18 Libertarian Party of Michigan v. Johnson, 905 F. Supp. 2d 751 (E.D. Mich.
2012) .....................................................................................................................12 Lucking v. Schram, 117 F.2d 160 (6th Cir. 1941) .....................................................9 Maryland v. King, 133 S. Ct. 1 (2012) ....................................................................27 Meyer v. Grant, 486 U.S. 414 (1988) ......................................................................14 Munro v. Socialist Workers Party, 479 U.S. 189 (1986).........................................21 Nader v. Blackwell, 230 F.3d 833 (6th Cir. 2000)...................................................12 NEOCH v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .................................................9 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..........27 Nken v. Holder, 556 U.S. 418 (2009) ......................................................................27 Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329 (6th Cir. 2016) .........15 Ohio Republican Party v. Brunner, 543 F.3d 357 (6th Cir. 2008)............................9 Purcell v. Gonzalez, 549 U.S. 1 (2006) ............................................................ 11, 12
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Republican Nat’l Comm. v. Democratic Nat’l Comm., 206 L.Ed.2d 452 (2020) ....................................................................................................................11
Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019).....................................................15 Serv. Employees Int’l Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) ......11 Shelby Cty. Advocates for Valid Elections v. Hargett, 348 F. Supp. 3d 764
(W.D. Tenn. 2018)................................................................................................12 Stenberg v. Cheker Oil Co., 573 F.2d 921 (6th Cir. 1978)........................................9 Storer v. Brown, 415 U.S. 724 (1974) .............................................................. 17, 20 Summit County Democratic Cent. & Exec Comm. v. Blackwell, 388 F.3d 547
(6th Cir. 2004) ........................................................................................................9 Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir.
1993) .....................................................................................................................14 Thompson v. DeWine, No. 20-3526, 6th Cir. May 26, 2020 ...................... 19, 20, 30 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ..............................21 William v. Rhodes, 393 U.S. 23 (1968) ...................................................................11
Statutes Mich. Comp. Laws § 168.1........................................................................................5 Mich. Comp. Laws § 168.472....................................................................................5 Mich. Comp. Laws § 168.472a ................................................................................16 Mich. Comp. Laws § 168.476................................................................................5, 7 Mich. Comp. Laws § 168.477........................................................................... 5, 6, 7 Mich. Comp. Laws § 168.477(1) ...............................................................................5 Mich. Comp. Laws § 168.482....................................................................................5 Mich. Comp. Laws § 800.33......................................................................................1
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Constitutional Provisions Mich. Const. 1963, art 2, § 4(2) ...............................................................................20 Mich. Const. 1963, art. 2, § 9............................................................................ 4, 5, 6
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether Plaintiffs’ motion for temporary restraining order should be
denied where Plaintiffs have failed to satisfy the requirements for granting such extraordinary relief?
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INTRODUCTION Plaintiffs are proponents of an initiative petition to amend Michigan’s truthin-sentencing law, 1893 P.A. 118, Mich. Comp. Laws § 800.33.1 Under the Michigan Constitution, they are required to file at least 340,047 valid signatures by the statutory deadline of May 27, 2020 to potentially gain access to the November 3, 2020 general election ballot. Plaintiffs ask this Court to enjoin the signature requirement and filing deadline for legislative initiative petitions. Plaintiffs argue the Covid-19 pandemic and the Governor’s executive orders limiting social interactions made it impossible for them to meet these requirements. But Plaintiffs fail to demonstrate, as they must, a strong likelihood of success on the merits of their First and Fourteenth Amendment constitutional claims, and their similar failure to sufficiently demonstrate irreparable harm also requires denial of their motion.
STATEMENT OF FACTS A. The Governor’s declaration of emergency and other executive
orders. 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
1 See website for Michigan Prisoner Rehabilitation Credit Act, available at https://www.mprca.info/.
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cases in Michigan.2 While this order noted the serious nature of the virus, it 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.3 But the order stated that its “prohibition [did] not abridge protections guaranteed by the state or federal constitution under these emergency circumstances.”4
Three days later, 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.5 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.6 That order included the same language that its “prohibition [did] not abridge
2 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. 3 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. 4 (Id.) 5 EO No. 2020-9, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. Replaced by EO 2020-20. 6 EO No. 2020-11, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html.
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protections guaranteed by the state or federal constitution under these emergency circumstances.”7
Subsequently, on March 23, 2020, again in response to the spreading Covid-
19 pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21
(the “Stay-Home Order”), 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.8 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.9 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, 2020.10 She then extended it through May 15, 2020, pursuant to Executive Order 2020-59.11 These orders did not contain the “does not abridge” language. But the
7 (Id.) 8 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. 9 (Id.) 10 EO No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf. See also EO No. 2020-43, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-525927--,00.html. 11 EO No. 2020-59, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-526894--,00.html.
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orders were interpreted to permit outdoor “expressive activities protected by the
First Amendment,” so long as “social distancing measures . . . including remaining
at least six feet from people from outside the person’s household” were followed.12
Since then the Governor has additionally extended the Stay-Home Order, but has
lessened the restrictions each time.13
B. General requirements for initiative petitions in Michigan Article 2, § 9 of the Michigan Constitution empowers the people to propose
laws or to enact or reject laws, called the initiative. Mich. Const. 1963, art. 2, § 9.
With respect to initiatives, § 9 provides in relevant part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative . . . To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight percent for initiative . . . of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. [Mich. Const. 1963, art. 2, § 9.]
12 See EO No. 2020-21, FAQ’s, https://www.michigan.gov/coronavirus/0,9753,7406-98178_98455-522631--,00.html; EO No. 2020-42, FAQ’s https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-525278-,00.html; EO No. 2020-59, FAQs, https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-527027-,00.html. 13 See EO Nos. 2020-70, 2020-77, 2020-92, 2020-96, and 2020-100 available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html. These orders were likewise interpreted to permit outdoor, expressive First Amendment activities. See FAQ’s for EOs 70, 77, 92 and 96, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-521682-,00.html.
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The Michigan Legislature implemented article 2, § 9 with respect to initiatives in various sections of the Michigan Election Law, Mich. Comp. Laws § 168.1 et seq. Under the Constitution and the Election Law, in order for the people to place an initiative on the general election ballot, the people must: (1) prepare a petition that meets the form requirements of Mich. Comp. Laws § 168.482; (2) gather the required number of valid signatures under article 2, § 9; and (3) timely file the petitions with the Secretary of State under Mich. Comp. Laws § 168.472. After filing, Michigan’s Board of State Canvassers must canvass the petition to determine whether there are sufficient valid signatures under Mich. Comp. Laws § 168.476. Once the review is complete, the Board of State Canvassers must make an official declaration of the sufficiency or insufficiency of the initiative petition at least 100 days before the election at which the proposal is to be submitted. Mich. Comp. Laws § 168.477(1).
If the initiative petition is certified as sufficient, the Secretary of State must present it to the Legislature for enactment or rejection within 40 sessions days under article 2, § 9. If the Legislature rejects the initiative, it must be submitted to the people for a vote at the next general election. Mich. Const. 1963, art. 2, § 9.
C. Requirements and timeline for initiatives for the November 2020 general election
For this election cycle, proponents of a legislative initiative, like Plaintiffs, must file a petition containing at least 340,047 valid signatures of registered voters
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with the Secretary of State by May 27, 2020. Mich. Const. 1963, art. 2, § 9; Mich. Comp. Laws § 168.477.14 As explained by Defendant Director of Elections Jonathan Brater in his declaration, after a petition is filed it undergoes a rigorous and time-sensitive canvassing process that includes a face review of every petition sheet, a random signature sampling process, and a signature challenge period. (Ex A, Brater Dec, ¶¶ 7-8). The canvassing process ends with the State Board of Canvassers, which must meet to declare the sufficiency or insufficiency of an initiative petition by July 24, 2020 for this cycle. (Id., ¶ 6). If a petition is declared sufficient, the Secretary of State will transmit the proposal to the Legislature for its 40-session day review. (Id., ¶¶10-11). By September 4, 2020, the Board must assign a proposal number to any initiative that is not passed by the Legislature and approve ballot wording. (Id., ¶ 11). The Secretary of State will immediately thereafter certify the ballot to the county clerks, which clerks must then prepare to print ballots. (Id., ¶ 11). As explained in Director Brater’s declaration, ballot printing is, or at least can be, a complex process involving significant levels of preparation and review. (Id., ¶ 13-17). But ultimately, ballots must be printed and available for delivery to military and overseas voters beginning September 21,
14 See also Sponsoring a Statewide Initiative, Referendum or Constitutional Amendment Petition, p 5, available at www.michigan.gov/documents/sos/ Initiative_and_Referendum_Petition_Instructions_2019-20_061119_658168_7.
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2020. (Id., ¶19). The following table shows the timeline of pertinent dates leading

up to the November 2020 general election:

Date and Time

Action

By 5:00 pm on May Petitions for legislative initiative filed

27, 2020

with Secretary of State (340,047 valid

signatures required)

May 27, 2020 to July Canvass of initiative petitions begins,

23, 2020

including random sampling process;

signature challenges permitted during

this time period. (Canvassing may take

up to 60 days)

July 24, 2020

Board of State Canvassers to declare

sufficiency or insufficiency of initiative

petitions

September 4, 2020 Board of State Canvassers must assign

numerical designation and approve

ballot wording for all statewide

proposals, and Secretary of State must

certify the ballot to county clerks

September 5, 2020 County clerks begin ballot proofing and

printing

September 19, 2020 Deadline for county boards of election

commissioners to deliver AV ballots to

county clerks for November Election

September 21, 2020 Deadline for county clerks to deliver

AV ballots to local clerks; deadline for

AV ballots to be available for delivery

to military and overseas voters

November 3, 2020 General Election

Statute Mich. Comp. Laws § 168.471 Art 2, § 9 Mich. Comp. Laws § 168.476
Mich. Comp. Laws § 168.477
Mich. Comp. Laws §§ 168.474a, 168.480, 168.648
Mich. Comp. Laws § 168.689 Mich. Comp. Laws § 168.713
Mich. Comp. Laws §§ 168.759a, 168.714 Art. 2, § 4 52 U.S.C. § 20302

D. Procedural History Plaintiffs filed the complaint for declaratory and injunctive relief, along with a motion for a temporary restraining order, on May 4, 2020. Defendants have not
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been served with the complaint or motion. The undersigned counsel received an email from the Court on May 21, 2020, alerting them to the existence of the motion and requesting they join a scheduling conference by telephone that afternoon. During that telephone conference, the Court indicated that—due to some issue involving the mail—the complaint and motion had just arrived to the Court that day. Defendants agreed to submit a response to the motion by Wednesday, May 27, 2020.
ARGUMENT I. Plaintiffs’ motion for a temporary restraining order should be denied
where they have not shown a likelihood of success on the merits of their 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
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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).
B. Plaintiffs have not shown a strong likelihood of success on the merits of their 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).
A. Plaintiffs are unlikely to succeed because their claims are barred by the doctrine of laches.
The defense of laches is rooted in the principle that “equity aids the vigilant, not those who slumber on their rights.” Lucking v. Schram, 117 F.2d 160 (6th Cir. 1941). An action may be barred by the equitable defense of laches if: (1) the plaintiff delayed unreasonably in asserting their rights and (2) the defendant is prejudiced by this delay. Brown-Graves Co. v. Central States, Southeast and Southwest Areas Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000). Laches applies in this case for both of these reasons.
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First, Plaintiffs unreasonably delayed raising their claims before this Court. Plaintiffs have been well aware of both the legal requirements for having an initiative proposal reach the ballot and of the emergency posed by a global pandemic. Plaintiffs seek an injunction to order the State Defendants to change the number of signatures required, the method of gathering them, and the May 27 deadline, but the complaint and motion for preliminary injunction in this matter were filed on May 4, 2020. Moreover, the State Defendants have still never been served with the complaint or motion. Rather, they were informed by the Court on May 21 that this case existed and that the Court wanted to schedule times for briefing and hearing the motion. While there was apparently some delay in the mail that resulted in the complaint not reaching the Court until that time, even the May 4 filing date was already an unreasonable delay for a complaint seeking to modify a deadline less than 30 days away.
Neither their complaint nor their motion make any attempt to explain the timing of their filing, and they make no allegation of any change in circumstance on or around May 4 that would give rise to a sudden emergency.15 Simply stated,
15 Plaintiffs’ have variously referred in their complaint and brief to the emergency surrounding the COVID-19 pandemic, but Plaintiffs took no action after Governor Whitmer’s declaration of emergency on March 10, or after the Stay-home order on March 23. There is nothing about the pandemic that necessitated Plaintiffs waiting until May 4 to file their complaint.
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the Plaintiffs—of their own choosing—waited until less than a month before the deadline to raise their claims. That delay is simply unreasonable.
“As a general rule, last-minute injunctions changing election procedures are strongly disfavored.” Serv. Employees Int’l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012)(citing Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006)(“Court orders affecting elections…can themselves result in voter confusion…As an election draws closer, that risk will increase.”)); William v. Rhodes, 393 U.S. 23, 34-35 (1968) (affirming denial of request for injunction requiring last-minute changes to ballots, given risk of disrupting election process). The Supreme Court recently reaffirmed that principle in Republican Nat’l Comm. v. Democratic Nat’l Comm., 206 L.Ed.2d 452, 454 (2020) (staying portions of an injunction modifying process for mailing ballots on eve of primary election). The Sixth Circuit has also recognized that the federal courts should not quickly “become entangled, as overseers and micromanagers, in the minutiae of state election processes.” See Ohio Democratic Party v. Husted, 834 F.3d 620, 622 (6th Cir. 2016).
In Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016), the Sixth Circuit stayed an injunction affecting election procedures, and the reasoning could just as readily apply in this case:
There are many reasons to grant the stay. The first and most essential is that Crookston offers no reasonable explanation for waiting so long to file this action. When an election is “imminen[t] and when there is “inadequate time to resolve [] factual legal disputes” and legal
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disputes, courts will generally decline to grant an injunction to alter a State’s established election procedures. See Purcell v. Gonzalez, 549 U.S. 1, 5-6, 127 S. Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). That is especially true when a plaintiff has unreasonably delayed bringing his claim, as Crookston most assuredly has. See Operating Engineers Local 324 Health Care Plan v. G & W Contr. Co., 783 F.3d 1045, 1053 (6th Cir. 2015); Nader v. Blackwell, 230 F.3d 833, 835 (6th Cir. 2000); Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980). Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so. Faced with similar delays by parties, the Sixth Circuit has reasoned that as
time passes, the interests in proceeding with an election increase in importance.
See Kay v. Austin, 621 F.2d 809, 813 (1980); see also Nader v. Blackwell, 230 F.3d
833, 835 (6th Cir. 2000); Libertarian Party of Michigan v. Johnson, 905 F. Supp.
2d 751, 754 n.2 (E.D. Mich. 2012). See also Shelby Cty. Advocates for Valid
Elections v. Hargett, 348 F. Supp. 3d 764, 773 (W.D. Tenn. 2018).
Second, the State Defendants have been severely prejudiced by the
Plaintiffs’ delay as the filing deadline elapses today, May 27, 2020. The ability of
the State Defendants to meaningfully respond to the complaint—or even to
effectively comply with any potential injunction—has been effectively destroyed
by the last-minute filing of this action. Indeed, this motion is scheduled for
hearing the week of June 1, 2020—after the deadline the Plaintiffs seek to
challenge. Even if the Court were to issue an injunction from the bench during that
hearing, it would leave no time to implement any relief for other ballot proposal
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petitioners, who must either file their petitions on May 27, 2020 or gamble on the prospect of relief in this case. Had Plaintiffs acted with greater diligence in filing this action, any relief could have been publicized and implemented before the deadline, but that is no longer possible.
Plaintiffs have unreasonably delayed in raising these claims before this Court, and the consequences of their delay have prejudiced the State Defendants. This Court should refuse to issue an injunction based on the doctrine of laches.
B. Plaintiffs are unlikely to succeed on the merits of their First and Fourteenth amendment claims.
Plaintiffs argue that the enforcement of the statutory deadline and the constitutional signature requirement “during this national time of crisis and in light of Governor Whitmer’s Stay-home Order is unconstitutional.” (Doc. 2, TRO Brf, Page ID # 59). This is because “Defendants have stripped proponents of ballot initiatives of the ability to meet these requirements because the Stay-home Order prohibits Michigan electors from leaving their homes for non-essential purposes like signature gathering.” (Id. at Page ID # 59-60). They further note that the Stay-home Order “further requires the Plaintiffs and all Michigan’s citizens to maintain a distance of six feet from all other individuals, 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’
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to SawariMedia getting their initiative on the November 2020 ballot.” (Id., quoting Graveline, et al v. Benson, et al., 336 F. Supp. 3d 801, 809 (E.D. Mich. 2018)).
Plaintiffs have no fundamental right to initiate legislation, see, e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring) (“[W]e must be mindful of the character of initiatives and referenda. These mechanisms of direct democracy are not compelled by the Federal Constitution.”); see also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (“[T]he right to an initiative is not guaranteed by the federal Constitution”). Each State, acting in their sovereign capacity, has the power to decide whether and how to permit legislation by popular action. Reed, 561 U.S. at 212 (Sotomayor, J., concurring). “States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.” Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 191 (1999).
However, once having adopted an initiative process, a state may violate the federal Constitution if it “unduly restricts the First Amendment rights of its citizens who support the initiative.” Taxpayers United, 994 F.2d at 295 (citing Meyer v. Grant, 486 U.S. 414 (1988)). Accordingly, “although the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution.” Id.
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Nonetheless, the Supreme Court has emphasized that, “States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process.” Buckley, 525 U.S. at 191.
To analyze state initiative process requirements, the Sixth Circuit has applied the Anderson-Burdick analysis from Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018); Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019). Under the Anderson-Burdick framework, 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 “lesssearching 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
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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 Plaintiffs is not severe. Plaintiffs argue that the signature requirement and statutory deadline combined with the Governor’s Stay-home Order imposes a severe burden on their ability to have their initiative proposal reach the ballot by limiting their ability to collect the required number of signatures—at least 340,047—by the required deadline, May 27. While there is an undeniable burden imposed by these regulations on Plaintiffs, it is not severe under the circumstances. Plaintiffs decided late to start circulating their petition. Indeed, they could have begun circulating a petition after filing it with the Secretary of State any time after the November 2018 general election. The only restriction is that signatures older than 180 days cannot be counted. Mich. Comp. Laws § 168.472a. For example, the Michigan Values Life ballot proposal committee obtained approval as to form of its initiative petition from the Board of State Canvassers on June 19, 2019, and the committee filed its initiative petition with the Secretary of State on December 23, 2019.16 Here, it appears that Plaintiffs waited to file their petition
16 See May 15, 2020, Announcement, Michigan Values Life Initiative, https://www.michigan.gov/documents/sos/Announcement__MVL_Challenge_Deadline_690763_7.pdf, and approved petition at https://www.michigan.gov/documents/sos/MVL_Petition_061719_version_658581 _7.pdf. The committee reported that it filed approximately 380,000 signatures
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with the Secretary of State until January 16, 2020, (Doc 1, Cmplt, ¶22, Page ID # 5), and presumably only started gathering signatures on or after that date. As a result, Plaintiffs lost a significant portion of their 180-day signature gathering period before gathering their first signature. Indeed, they could have begun collecting signatures on November 29, 2019—180 days before May 27, 2020. As a result, their assertions that they have been diligent in the exercise of their rights under the initiative process and in collecting signatures or that the Stay-Home Orders are the sole restraint on their efforts, are neither substantiated nor 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”).
In fact, by their own admission, Plaintiffs “postponed many of their efforts to collect signatures” after President Trump issued his “slow the spread” initiative on March 15—over a week before the Governor issued the Stay-Home Order. (Doc. 1, ¶28, Page ID # 6). Moreover, Governor Whitmer’s declaration of emergency on March 10, 2020 by no means required or even suggested that Plaintiffs must suspend their signature collection efforts immediately and indefinitely. The first Stay-Home Order was not issued until March 23, meaning
with the Secretary of State. See https://www.wxyz.com/news/michigan-groupsubmits-petition-to-ban-abortion-method.
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Plaintiffs had 13 additional days from the declaration of emergency to collect signatures before social interaction was curtailed. Between these 13 days and the nearly 7 weeks they gave up by not filing and circulating their petition until January 16, Plaintiffs effectively abandoned the equivalent of the time between March 23 and May 27.17
In addition, even after issuance of the Stay-Home Order, that order and the subsequent orders were interpreted as permitting persons to engage in outdoor expressive activities protected by the First Amendment so long as social distancing measures are observed. Plaintiffs also had the ability to continue collecting signatures by switching to the use of regular mail. Voter address lists may be obtained from local clerks or the Michigan Bureau of Elections, and voters can be mailed a copy of a petition, asked to sign the petition as a signer and a circulator, and to send the completed petition back to the committee, typically in a selfaddressed, stamped envelope.18 This process does involve a cost, but Plaintiffs 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
17 There are 65 days between March 23 and May 27. But there are 48 days between November 29 and January 16, and adding the 13 days in March leads to a total of 61 days. 18 Plaintiffs’ website indicates that they also sought signatures by mail. See https://www.mprca.info/.
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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 not impose severe burdens on the Green Party and Arkansas need not collapse every barrier to ballot access.”)
Under these circumstances, the burden on continuing to require Plaintiffs to meet the constitutional and 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.
In fact, the Sixth Circuit just recently held that similar initiative petition regulations did not impose a severe burden in light of the pandemic, and were therefore subject to intermediate scrutiny under the Anderson-Burdick standard. Thompson v. DeWine, No. 20-3526, 6th Cir. May 26, 2020, *8-9 (unpublished, copy attached as Exhibit B).
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
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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). Also, the Sixth Circuit in Thompson held that the state interests supporting Ohio’s statute and constitution were not merely legitimate, but compelling. Thompson v. DeWine, supra at *9. The same interests—prevention of fraud and allowing sufficient time to verify signatures while also providing time for challenges—are present here. Id. The Court further held that “[b]ecause the State’s compelling and well-established interests in administering its ballot initiative regulations outweigh the intermediate burden those regulations place on the plaintiffs, Defendants are likely to prevail on the merits.” Id.
With respect to signature requirements, the U.S. Supreme Court has recognized that states, like Michigan, have an important interest in requiring some preliminary showing of a significant modicum of support before granting access to
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their ballots. See e.g. 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 Michigan Supreme Court has observed that “[t]here may be an ‘overarching right’ to the initiative petition, ‘but only in accordance with the standards of the constitution; otherwise, there is an “overarching right” to have public policy determined by a majority of the people’s democratically elected representatives.’ ” Citizens Protecting Michigan’s Constitution v. Sec’y of State, 921 N.W.2d 247, 252 (2018) (footnote and citations omitted). While that case involved initiative petitions to amend the Michigan Constitution, the principles apply equally to legislative initiatives. And as the Michigan Supreme Court observed in that case, the enactment of “a signature requirement” in the Michigan Constitution for initiatives can be “viewed” as a “clear[ ] and [ ] stringent limitation” on the right of initiative. Id. at 260 (footnotes and citations omitted). Michigan’s interest in ensuring a modicum of support for legislative initiatives is thus substantial when individuals or groups seek to act as legislators by invoking the initiative process. And article 2, § 9’s signature requirement advances that important interest in Michigan by requiring Plaintiffs to demonstrate that their proposed initiative has a significant modicum of public support in the State.
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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
petition proponents like Plaintiffs; it is part of a carefully constructed set of
election deadlines extending backward from the date of the election.
The Secretary, through the Bureau of Elections, must canvass all ballot
initiative petitions filed by Plaintiffs or any other groups also seeking to reach the
ballot. There is at least one other legislative initiative petition that was circulated with an intent to gain ballot access for the November 2020 general election.19
Accordingly, the Bureau of Elections will have hundreds of thousands of
signatures to canvass between May 27 and July 24, 2020, the date by which the
Board of State Canvassers must certify the sufficiency or insufficiency of
legislative initiatives. Infringing on any of the statutory deadlines threatens the
integrity of the entire process.
19 That initiative petition was circulated by Fair and Equal Michigan, a ballot proposal committee. On May 26, 2020, Fair and Equal Michigan filed a complaint for declaratory and injunctive relief in the Michigan Court of Claims. Fair and Equal Michigan, et al. v. Secretary of State, et al., Court of Claims Case No. 20000095-MM. Like the Plaintiffs here, the Fair and Equal Michigan Plaintiffs also claim they had trouble obtaining the required 340,047 signatures. They claim violations of their right to initiative under article 2, § 9 of Michigan’s Constitution, as well as violations of their right to speech and association under article 1, §§ 3 and 5 of the Michigan Constitution. They also request an extension of the May 27 filing deadline and a reduction in required signatures on an as-applied basis.
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The May 27 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.
Any burden on Plaintiffs here is not the result of any statute or constitutional provision, but the state of emergency created by the Covid-19 pandemic and the necessary orders limiting social interaction. As the Governor explained in those orders, her actions are necessary to preserve and protect the lives of Michigan’s citizens.20 Providing Plaintiffs with the opportunity to have their proposal reach the ballot is important. But under the Governor’s emergency orders, every citizen is potentially experiencing some necessary infringement of a constitutional right. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26-27 (1905) (“The possession and enjoyment of all rights are subject to such reasonable
20 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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conditions as may be deemed by the governing authority of the country essential to
the safety, health, peace, good order, and morals of the community.”) 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.21 On balance, and under these circumstances, requiring
proponents like Plaintiffs to continue to meet their signature and filing deadlines is
not an unconstitutional burden.
C. Plaintiffs have not shown they 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). But
unless the statute is unconstitutional, enjoining a “State from conducting [its]
elections pursuant to a statute enacted by the Legislature…would seriously and
21 Plaintiffs note 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 Plaintiffs seek here, meanwhile, is not similarly necessary and unduly disruptive, for the reasons set forth in this brief.
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irreparably harm [the State].” Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). Pointedly, the Sixth Circuit held in Thompson, supra, at *9-10, that complying with a law that the Court had just determined likely constitutional was not likely to harm the plaintiffs. The Court further held that giving effect to the will of the people by enforcing the laws they and their representatives enact serves the public interest. Id. (citing Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006)).
In their declarations, Plaintiffs assert that the Stay-home Order has impeded or prohibited them from continuing to gather signatures in person. (Doc. 2, TRO Brf, Ex A, Sawari Dec, Page ID # 69). Plaintiffs argue that without relief, they will have lost a substantial amount of time and money attempting to collect signatures by mail “but the U.S. Postal Service is running several weeks behind in the processing of mail in Michigan.” (Id.) They assert that they and their supporters “will be further injured and will suffer irreparable harm to our voting, speech, and associational rights because our initiative will not appear on the ballot and we will not be able to make our voices heard on an issue we wish to bring about change.” (Id., Page ID # 69).
It is worth noting again that Plaintiffs commenced their campaign late, and despite circulating their petitions for five months, are still more than 125,000 signatures short of the minimum threshold. A late start and questionable diligence
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certainly place much of the alleged injury on Plaintiffs’ shoulders. Regardless, losing time and money is something that every petition proponent faces, whether it is because they fail to make the ballot or ultimately lose an election.
As far as spending money on a mail campaign, Defendants are aware that a number of candidates successfully gathered signatures by mail under the same circumstances Plaintiffs claim to be insurmountable. Moreover, it is not clear from the declarations how diligent Plaintiffs have been in their mail campaign, stating merely that they mail petitions to those who request it. But, again, Plaintiffs may obtain voter lists and mail petitions to as many voters as they choose. That they have not done so may be a strategic or economic decision, but it is not a restraint imposed by Michigan’s Constitution, statutes, or Governor. Further, Plaintiffs neglect to report how many signatures they have received through even their limited mail efforts, providing an incomplete and inadequate record on which to base a claim for irreparable harm. Plaintiffs have not carried their burden.
Lastly, much of what Plaintiffs complain of are not consequences of the Governor’s orders so much as they are natural results of a global pandemic. Plaintiffs describe their signature-gathering plan as involving a number of “popup” and “pick-up and drop-off” locations throughout the state for electors to sign the petition or take copies to circulate on their own. (Doc. 1, Page ID # 6). However, even without the Stay-home Order, prudence and the advice of medical
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experts would nonetheless have counseled the majority of electors to avoid the public places targeted by Plaintiffs and to refrain from unnecessary gatherings. The difficulty encountered in gathering petitions during a pandemic—similar, it must be imagined, to gathering signatures during any other disaster—should not be held against or framed as a constitutional violation by government officials merely trying to protect the lives of the people they serve.
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 Plaintiffs without an injunction, the issuance of an injunction will irreparably harm the State and its citizens. The Supreme Court has recognized that “anytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, *3 (2012) (C.J. Roberts in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). The election laws challenged here were duly enacted by the people in the Constitution or 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. As the Sixth Circuit recognized this week in the
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Thompson decision, “serious and irreparable harm will thus result if [the state] cannot conduct its election in accordance with its lawfully enacted ballot-access regulations.” Thompson, supra at *9-10.
In addition to the State’s concern regarding disruption to the electoral process discussed above, the State has an interest in upholding and adhering to its Constitution. The people of the State of Michigan adopted article 2, § 9, which expressly provides that in order to have invoke the constitutionally-created powers of initiative or referendum, “petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.” The eight percent requirement was imposed by the people to implement the Constitution—it is included in the Constitution itself. This constitutional provision makes clear that it was the will of the people that initiative petitions demonstrate significant support among the electorate before being voted upon.
Conversely, the harms claimed by the Plaintiffs may just as readily be ascribed to their own delays, lack of diligence, and the difficulties inherent to a global pandemic. But, Plaintiffs’ failure to reach the required number of signatures could just as well be the result of a lack of popular support than any impediment
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arising from social distancing. In that case, granting Plaintiffs the relief they seek acts as a windfall and not equity.
This Court should deny Plaintiffs’ request for temporary injunctive relief. E. Request if the Court is inclined to grant injunctive relief. 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. But Defendants would urge this Court to refrain from altering the signature requirements. These are, of course, difficult times. Few among us can claim not to have been affected by the virus or the consequences of social distancing. Indeed, it is difficult to think of any social, political, or legal process that has not been disrupted by the pandemic to some degree. It may be tempting to think that this case presents an opportunity to fix just one problem brought about by the crisis. But there are risks to rewriting statutes and constitutions on the fly while the election is already underway—especially when there are precious few legal principles to guide the outcome. As the Sixth Circuit observed this week: There is no doubt that the COVID-19 pandemic and Ohio’s responsive restrictions to halt the spread of that disease have made it difficult for all Ohioans to carry on with their lives. But for the most part we are letting our elected officials, with input from public health experts, decide when and how to apply those restrictions. The election context is no different.
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Thompson, at *11. The Plaintiffs point to the Esshaki case and suggest that they should have the
same relief, without recognizing or mentioning that the Esshaki decisions did not involve state constitutional requirements. But even there, the Sixth Circuit was clear that it is not for federal courts to rewrite a state’s election laws. Esshaki, et al. v. Whitmer, et al., 2020 U.S. App. LEXIS 14376, *4. The District Court in Esshaki, et al. v. Whitmer, et al., 2020 U.S. Dist. LEXIS 68254, *36, acknowledged that “any line-drawing inevitably involves some degree of arbitrariness,” before settling on a 50% reduction in signatures considering that a “reasonably diligent” candidate should have reached the half-way point one month before the filing deadline.
But in contrast to the deadline in Esshaki, the deadline here was more than month away when the Stay-Home Order was issued, and so the same rationale in arriving at a percentage is not easily applied in this case. And because the Plaintiffs have provided no information about the efficacy of their efforts following the Stay-Home Order, there is no data from which to craft a formula to determine how much more time they would need to reach any particular reduced threshold.
This Court has previously referred to the case of Thompson v. Dewine, 2020 U.S. Dist. LEXIS 87773 as being potentially persuasive on the outcome of this case. The Ohio District Court, of course, recognized that the state defendants were
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incapable of amending their constitution on their own, and so it issued an injunction requiring the acceptance of electronically gathered signatures and enjoining the constitutional deadlines. Id. at *59-62. The Court did not directly change the number of signatures required but instead appeared to direct the defendants to make “adjustments to the enjoined requirements.” Id. That approach does not neatly fit here, and changing the number of signatures would require this Court to order a new number to replace the one provided in the state Constitution. Again, there is little or no guidance available to aid the Court in drawing such a line beyond what the people of Michigan have already done in adopting their Constitution.
And in reversing the injunction issued by the district court in Thompson, the Sixth Circuit rebuked the district court for relying on Esshaki but failing to apply the Court’s primary holding: “federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Thompson, supra, at *10. The Sixth Circuit emphasized that district courts should refrain from (1) reducing the number of signatures, (2) extending filing deadlines, and (3) ordering a state to permit electronic gathering of signatures. Id. While a district court may enter positive injunctions to require parties to comply with existing law, they cannot “usurp a State’s legislative authority by re-writing its statutes” to create new law. Id. The Sixth Circuit specifically noted that the same proscription also
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applied to rewriting a state’s constitution. Id. The Court also recognized that, as

elections draw closer, changing one deadline or procedure would likely have other,

inevitable consequences. Id. at *11. So, should this Court find that Michigan’s

election statute and its Constitution are unconstitutional as applied under the

circumstances, the decision on how they should be modified must rest with the

State Defendants. Id.

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 Plaintiffs’ request for a

temporary restraining order.

Respectfully submitted,

Dated: May 27, 2020

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

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CERTIFICATE OF SERVICE I hereby certify that on May 27, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record, as well as via electronic mail to the following parties appearing in pro per: Amani Sawari, In Pro Per, amanisawari@gmail.com Judy Kellogg, In Pro Per, judykellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.greenyard@yahoo.com
s/Erik A. Grill Erik A. Grill (P64713) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAHL PARKER, JUDY KELLOGG and PAUL ELY,
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,

No. 20-11246
HON. MATTHEW F. LEITMAN
MAGISTRATE MICHAEL J. HLUCHANIUK

Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR TRO/PRELMINARY INJUNCTION
Exhibit List
A. Declaration of Jonathan Brater B. Thompson v. DeWine

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

SAWARIMEDIA, LLC, DEBORAH PARKER, JUDY KELLOGG, AND PAUL ELY,

Plaintiffs,

Case No 4:20-cv-11246-MFL-MJH

v

GRETCHEN WHITMER, Governor of Michigan JOCELYN BENSON, Secretary of State, JONATHAN BRATER, Director of Elections, and BOARD OF STATE CANVASSERS, in their official capacities,

Defendants.

DECLARATION OF JONATHAN BRATER I, Jonathan Brater, state as follows: 1. I have been employed by the Secretary of State as Director of Elections since January 2, 2020 and in such capacity serve as Director of the Bureau of Elections (Bureau). See M.C.L. § 168.32. 2. I bring this declaration in support of Defendants’ Response to Plaintiffs’ Motion for a Temporary Restraining Order or for a Preliminary Injunction. If called as a witness, I could testify truthfully and accurately as to the information contained within this declaration.
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3. I am personally knowledgeable about provisions of the Michigan Election Law and Michigan Constitution that govern the canvass of statewide petitions for the initiation of legislation. Additionally, I have personal knowledge of the federal and state laws governing ballot printing and distribution deadlines, particularly those that are relevant to military and overseas civilian absent voter ballots.
4. An initiative petition must “be filed with the Secretary of State at least 160 days before the election at which the proposed law is to be voted on.” M.C.L. §168.471. This deadline is May 27, 2020 for this election cycle.
5. In order to be counted, a signature on an initiative petition must be made no more than 180 days before the petition is filed with the office of the Secretary of state. The 180 days runs back not from the May 27, 2020 deadline for filing the petition, but rather from the date that the petition was actually filed. M.C.L. §168.472a.
6. The Board of State Canvassers must complete the canvass of an initiative petition on or before the 100th day prior to the November general election, as (a) the Board of State Canvassers must approve ballot wording and assign a numerical ballot designation (i.e., “Proposal 20-1”) at least 60 days prior to Election Day, or by September 4, 2020 (see M.C.L. §§ 168.480 and 168. 474a); and (b) the Legislature is afforded a period of 40 session days in which to enact the
2

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proposal, reject the proposal, or reject the proposal and submit an alternative proposal on the same subject to the electorate (see Mich. Const. 1963, Art. 2, § 9). In order to comply with these deadlines, the canvass of Plaintiffs’ initiative petition must be completed on or before July 24, 2020.
7. Statewide ballot proposal petitions filed with the Secretary of State are canvassed through random sampling, the process by which the Board of State Canvassers determines whether a sufficient number of valid signatures have been submitted in order to qualify for placement on the ballot.
8. Under the random sampling process: a. Every petition sheet is reviewed. Any petition sheet that is determined to be wholly invalid is set aside and excluded from the pool from which the samples are pulled. b. The remaining petition sheets are numbered and every signature appearing on numbered sheets is counted and added. This step yields the precise number of signatures that are within the pool of potentially valid signatures. c. Once the total number of signatures is ascertained, random signatures are selected from the numbered sheets by a computer program for comprehensive scrutiny. The size of the sample can range from approximately 500 to 4,000 signatures
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depending on the number of excess signatures filed. Copies of the petition sheets containing signatures within the random sample are made available to the petition sponsor and potential challengers. d. Every petition entry within the random sample is reviewed for facial validity, a process by which Bureau of Elections staff examines each entry for fatal errors or defects, such as an incomplete address, a signature dated after the circulator’s signature is affixed, and so on. Signatures that pass the facial validity examination are checked against the Qualified Voter File (QVF) to verify the signer’s registration status. e. Challenges may be filed concerning the registration status of a signer or the authenticity of a signer’s signature. M.C.L. §168.476(1). Under Board policy, a challenge must be filed within 10 business days of the date that copies of the petition sheets selected for the random sample are made available to potential challengers. The challenges are processed by comparing the challenges to the determinations rendered by staff under the facial validity and registration status examinations utilizing the QVF.
4

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f. The computer program estimates the number of valid signatures contained in the filing based on the error rate found in the random sample, and a “Staff Report” is prepared. The Staff Report is presented to the Board of State Canvassers for consideration in determining whether the petition contains a sufficient number of valid signatures to qualify for placement on the ballot, and includes the staff’s recommendation regarding the disposition of any challenges filed against the petition. The Staff Report must be published “[a]t least 2 business days before the board of state canvassers meets to make a final determination on challenges to and sufficiency of a petition[.]” M.C.L. § 168.476(3).
9. It takes approximately 60 days to complete the random sampling and challenge process described above.
10. Once the Board of State Canvassers determines that an initiative petition contains a sufficient number of valid signatures, the proposed initiated law is transmitted to the Legislature.
11. If the Legislature does not enact the proposal within 40 session days, the Board of State Canvassers must prepare the proposal for the ballot by assigning a numerical ballot designation and approving ballot wording no later than the 60th
5

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day prior to the election, which falls on September 4, 2020. M.C.L. §§ 168.474a, 168.480.
12. Additionally, the Secretary of State must certify the November 3, 2020 general election ballot—including any statewide ballot proposals—to Michigan’s 83 County Clerks by the 60th day prior to the election, or September 4, 2020. M.C.L. § 168.648.
13. In turn, the 83 Boards of County Election Commissioners are responsible for preparing and printing ballots for the November general election. M.C.L. § 168.689.
14. The minimum number of ballots required to be printed for the general election by each County Election Commission equals the total number of registered voters at the close of registration. Mich. Admin. Code R. 168.774(6)(a). As of May 22, 2020, there are 7,704,305 registered voters in the State of Michigan. Accordingly, at least 7,704,305 ballots must be printed, but more will be required as the registration deadline has not yet passed and there may also be in-person registration through the day of the election. Mich. Comp. Laws 168.497.
15. Prior to printing, the Boards of County Election Commissioners are required to submit proof copies of each style of ballot used in their respective counties to the Secretary of State and to each candidate whose name appears on the ballot. M.C.L. § 168.711. The candidates are allotted two business days in which
6

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to review the ballot proofs and notify the Board of County Election Commissioners of any corrections. Id. In addition, the Secretary of State reviews the ballot proofs for errors and if necessary, may require the Board of County Election Commissioners to make corrections. Id. Corrected ballot proofs must be submitted to the Secretary of State. Id.
16. Every county produces multiple ballot styles—often numbering in the dozens or even hundreds per county—for the general election, based on the geographic boundaries of the various elective offices that will appear on the ballot. For example, a precinct may be split into two different school districts or county commissioner districts, necessitating the printing of two different styles of ballot for that single precinct.1
17. After the Secretary of State’s review is complete and after the expiration of the two business day period for candidates to review proof copies of the ballots and any necessary corrections are made, the Board of County Election Commissioners may proceed with ballot printing. Id.
18. Absent voter ballots must be delivered by the Board of County Election Commissioners to the County Clerk by the 47th day prior to Election Day, or by September 19, 2020. M.C.L. § 168.713.
1 There are approximately 4,752 precincts in Michigan.
7

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19. County clerks must deliver absent voter ballots to city and township

clerks no later than the 45th day before the November General Election, or by

September 21, 2020. M.C.L. § 168.714. Additionally, absent voter ballots must be

available for distribution to all voters, and in particular military and overseas

voters, no later than the 45th day before the November General Election, or by

September 21, 2020. Mich. Const. 1963. Art. 2, § 4 (1)(b), M.C.L. § 168.759a.

The deadline for distribution of absent voter ballots is governed by both the

Federal Military and Overseas Voters Empowerment Act (MOVE Act), 52 U.S.C.

§ 20302(a)(8), and Michigan Election Law, M.C.L. §§ 168.714 and 759a.

20. Based on the above legal requirements and processes, the following

table shows the timeline of pertinent dates leading up to the election:

Date and Time By 5:00 pm on May 27, 2020 May 27, 2020 to July 23, 2020
July 24, 2020
September 4, 2020

Action Petitions for legislative initiative filed with Secretary of State (340,047 valid signatures required) Canvass of initiative petitions begins, including random sampling process; signature challenges permitted during this time period. (Canvassing may take up to 60 days) Board of State Canvassers to declare sufficiency or insufficiency of initiative petitions Board of State Canvassers must assign numerical designation and approve ballot wording for all statewide proposals, and Secretary

Statute Mich. Comp. Laws § 168.471 Art 2, § 9 Mich. Comp. Laws § 168.476
Mich. Comp. Laws § 168.477
Mich. Comp. Laws §§ 168.474a,

8

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September 5, 2020 September 19, 2020
September 21, 2020
November 3, 2020

of State must certify the ballot to county clerks County clerks begin ballot proofing and printing Deadline for county boards of election commissioners to deliver AV ballots to county clerks for November Election Deadline for county clerks to deliver AV ballots to local clerks; deadline for AV ballots to be available for delivery to military and overseas voters
General Election

168.480, 168.648 Mich. Comp. Laws § 168.689 Mich. Comp. Laws § 168.713
Mich. Comp. Laws §§ 168.759a, 168.714 Art. 2, § 4 52 U.S.C. § 20302

21. I declare under the penalty of perjury that the foregoing is true and correct, based on personal knowledge.

Jonathan Brater

9

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EXHIBIT B

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RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CHAD THOMPSON; WILLIAM T. SCHMITT; DON ┐

KEENEY,

│

Plaintiffs-Appellees, │ │

│

v.

>

│

│

RICHARD MICHAEL DEWINE, in his official capacity as │

the Governor of Ohio; AMY ACTON, in her official │

capacity as Director of Ohio Department of Health; │

FRANK LAROSE, in his official capacity as Ohio │

Secretary of State,

│

Defendants-Appellants, │

│

OHIOANS FOR SECURE AND FAIR ELECTIONS; DARLENE │

L. ENGLISH; LAURA A. GOLD; ISABEL C. ROBERTSON; │

EBONY SPEAKES-HALL; PAUL MOKE; ANDRE │

WASHINGTON; SCOTT A. CAMPBELL; SUSAN ZEIGLER; │

HASAN KWAME JEFFRIES; OHIOANS FOR RAISING THE │

WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID │

G. LATANICK; PIERRETTE M. TALLEY,

│

Intervenors-Appellees.

│ ┘

No. 20-3526

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:20-cv-02129—Edmund A. Sargus, Jr., District Judge.

Decided and Filed: May 26, 2020

Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges. _________________

COUNSEL

ON MOTION: Benjamin M. Flowers, Michael J. Hendershot, Stephen P. Carney, Shams H. Hirji, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. ON RESPONSE: Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus,

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Ohio, for Plaintiffs-Appellees. Donald J. McTigue, Derek Clinger, MCTIGUE & COLOMBO LLC, Columbus, Ohio, for Intervenors-Appellees.
_________________
ORDER _________________
PER CURIAM. By all accounts, Ohio’s public officials have admirably managed the problems presented by the unprecedented COVID-19 pandemic. This includes restricting Ohioans’ daily lives to slow the spread of a highly infectious disease. Nearly every other state and the federal government have done the same. And these are the types of actions and judgments that elected officials are supposed to take and make in times of crisis. But these restrictions have not gone unchallenged. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (per curiam); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020). Our Constitution, of course, governs during both good and challenging times. Unlike those cases, however, the Plaintiffs and Intervenors here do not challenge the State’s restrictions per se. Rather, they allege that COVID-19 and the State’s stay-at-home orders have made it impossibly difficult for them to meet the State’s preexisting requirements for initiatives to secure a place on the November ballot—violating their First Amendment rights. So they challenge Ohio’s application of its general election and ballot-initiative laws to them.
Ohio’s officials have not been unbending in their administration of the State’s election laws. Indeed, they postponed the Ohio primary election, originally scheduled during the height of the pandemic. That exercise of judgment is not before us. Rather, Plaintiffs challenge the Ohio officials’ decision not to further modify state election law in the context of this case. The district court agreed with Plaintiffs and granted a preliminary injunction, finding that, as applied, certain provisions of the Ohio Constitution and Ohio Code violate the First Amendment. Defendants now ask for a stay of that injunction to preserve the status quo pending appeal.
The people of Ohio vested their sovereign legislative power in the General Assembly. Ohio Const. art. II, § 1. But they also retained the power to amend the State Constitution, enact laws, and enact municipal ordinances by initiative and referendum. Id. art. II, §§ 1a, 1b, 1f. The Ohio Constitution and the Ohio Code establish the process for proposing an initiative to the

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State’s electors and impose many requirements for ballot access. Relevant here, a petition to put an initiative before Ohio’s electors for referendum must include signatures from ten percent of the applicable jurisdiction’s electors that voted in the last gubernatorial election, each signature must “be written in ink,” and the initiative’s circulator must witness each signature. Id. art. II, § 1g; see id. art. II, § 1a; Ohio Rev. Code Ann. § 731.28. And the initiative’s proponents must submit these signatures to the Secretary of State 125 days before the election for a constitutional amendment and 110 days before the election for a municipal ordinance. Ohio Const. art. II, § 1a; Ohio Rev. Code Ann. § 731.28.
Given the COVID-19 pandemic, three individuals and two organizations, who are obtaining signatures in support of initiatives to amend the Ohio Constitution and propose municipal ordinances, challenged these requirements, as-applied to them. They claim Ohio’s ballot-initiative requirements violate their First and Fourteenth Amendment rights and moved to enjoin the State from enforcing these requirements against them. The district court granted their motion in part, enjoining enforcement of the ink signature requirement, the witness requirement, and the submission deadlines, and denied their motion in part, upholding the number of signatures requirement. The court also directed Defendants to “update the Court by 12:00 pm on Tuesday, May 26, 2020 regarding adjustments to the enjoined requirements so as to reduce the burden on ballot access” as well as ordered them to “accept electronically-signed and witnessed petitions from [the organizational plaintiffs] collected through the on-line signature collection plans set forth in their briefing” and to “accept petitions from [the organizational plaintiffs] that are submitted to the Secretary of State by July 31, 2020[.]”1 (R. 44, Op. & Order at PageID # 675–76.) And the court ordered Defendants and the organizational plaintiffs to “meet and confer regarding any technical or security issues to the on-line signature collection plans” and “submit their findings to the Court by 12:00 pm on Tuesday, May 26, 2020.” (Id.) Defendants now move for an administrative stay and for a stay pending appeal.
1The district court chose this date because it is also the deadline for petition proponents to submit additional signatures if the Secretary of State determines that the original submissions were insufficient. (R. 50, Op. & Order at PageID # 718.) The Secretary of State would then have less than a month, until August 30, to determine whether the petitions satisfy the requirements for ballot access, Plaintiffs would need to file any legal challenge to the Secretary of State’s determination by September 9, the Secretary of State would have to certify the form of official ballots by September 14, and the Supreme Court would have to rule on any challenge by September 19. (Id.)

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“[I]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions” are immediately appealable. 28 U.S.C. § 1292(a)(1). And the district court has already denied Defendants’ motion for a stay pending appeal in that court. So we have jurisdiction and Defendants’ motion is ripe for our review.
A movant must establish four factors to obtain a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). When evaluating these factors for an alleged constitutional violation, “the likelihood of success on the merits often will be the determinative factor.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); see also Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012) (“In First Amendment cases, however, the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. This is so because . . . the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the state action.” (internal quotation marks and alteration omitted)). So we turn first to that.
I.
“[A]lthough the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution[.]” Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993); see also John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring) (“[I]nitiatives and referenda . . . are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action.”). As Defendants concede, our precedent dictates that we evaluate First Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under the Anderson-Burdick framework.2 Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019);

2Defendants contend that Anderson-Burdick shouldn’t apply to ballot initiative requirements because restrictions on the people’s legislative powers (rather than political speech or voting) don’t implicate the First Amendment. At least two other Courts of Appeals have held as much. See Initiative & Referendum Inst. v. Walker,

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Comm. to Impose Term Limits on the Ohio Supreme Court & to Preclude Special Legal Status for Members & Emps. of the Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018). First, we determine the burden the State’s regulation imposes on the plaintiffs’ First Amendment rights. When States impose “reasonable nondiscriminatory restrictions[,]” courts apply rational basis review and “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, (1983)). But when States impose severe restrictions, such as exclusion or virtual exclusion from the ballot, strict scrutiny applies. Id. at 434; Schmitt, 933 F.3d at 639 (“The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.”). For cases between these extremes, we weigh the burden imposed by the State’s regulation against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
We have regularly upheld ballot access regulations like those at issue. See Schmitt, 933 F.3d at 641–42 (upholding Ohio’s provision of only mandamus review for challenges to a Board of Elections’ ruling over compliance with ballot initiative requirements against a First Amendment challenge); Ohio Ballot Bd., 885 F.3d at 448 (upholding Ohio’s single-subject requirement for ballot initiatives against a First Amendment challenge); Taxpayers United, 994 F.2d at 296–97 (upholding Michigan’s number-of-signatures requirement for ballot initiatives against a First Amendment challenge). But these are not normal times. So the question is whether the COVID-19 pandemic and Ohio’s stay-at-home orders increased the burden that Ohio’s ballot-initiative regulations place on Plaintiffs’ First Amendment rights.
450 F.3d 1082, 1099–100 (10th Cir. 2006) (en banc); Marijuana Policy Project v. United States, 304 F.3d 82, 85 (D.C. Cir. 2002). And this court has often questioned whether Anderson-Burdick applies to anything besides generally applicable restrictions on the right to vote. Daunt v. Benson, 956 F.3d 396, 423–24 (6th Cir. 2020) (Readler, J., concurring) (acknowledging that “Anderson-Burdick is a poor vehicle” for evaluating First Amendment challenges to public service qualification regulations; Mays v. LaRose, 951 F.3d 775, 783 n.4 (6th Cir. 2020) (recognizing that applying Anderson-Burdick to Equal Protection claims “takes some legal gymnastics”); Schmitt, 933 F.3d at 644 (Bush, J., concurring in part) (“[T]he Court's precedents in Anderson and Burdick, though concerning election regulation, similarly do not address the key question raised in this case: is the First Amendment impinged upon by statutes regulating the election mechanics concerning initiative petitions?” (citation omitted)). But until this court sitting en banc takes up the question of Anderson-Burdick’s reach, we will apply that framework in cases like this.

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We must answer this question from the perspective of the people and organizations affected by Ohio’s ballot initiative restrictions and considering all opportunities these parties had to exercise their rights. Mays, 951 F.3d at 785–86.
The district court held that Ohio’s strict enforcement of its ballot initiative regulations imposed a severe burden on Plaintiffs’ First Amendment rights, given the pandemic. Not so. The district court based its order, in part, on this court’s recent order in Esshaki v. Whitmer, --- F. App’x ----, 2020 WL 2185553 (6th Cir. May 5, 2020). But there are several key differences between this case and Esshaki. At bottom, a severe burden excludes or virtually excludes electors or initiatives from the ballot. See Mays, 951 F.3d at 786; Schmitt, 933 F.3d at 639. But Ohio law doesn’t do that.
In Esshaki we held that “the combination of [Michigan’s] strict enforcement of [its] ballot-access provisions and [its] Stay-at-Home Orders imposed a severe burden on the plaintiff’s ballot access[,]” 2020 WL 2185553, at *1 (emphasis added). In other words, Michigan still required candidates seeking ballot access by petition to procure the same number of physical signatures as a non-pandemic year, “without exception for or consideration of the COVID-19 pandemic or the Stay-at-Home Orders.” Id. What’s more, Michigan’s stay-at-home orders remained in place through the deadline for petition submission. Id. So Michigan abruptly prohibited the plaintiffs from procuring signatures during the last month before the deadline, leaving them with only the signatures that they had gathered to that point.
On the other hand, Ohio specifically exempted conduct protected by the First Amendment from its stay-at-home orders. From the first Department of Health Order issued on March 12, Ohio made clear that its stay-at-home restrictions did not apply to “gatherings for the purpose of the expression of First Amendment protected speech[.]” Ohio Dep’t of Health, Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio ¶ 7 (March 12, 2020). And in its April 30 order, the State declared that its stay-at-home restrictions did not apply to “petition or referendum circulators[.]” Ohio Dep’t of Health, Director’s Order that Reopens Businesses, with Exceptions, and Continues a Stay Healthy and Safe at Home Order ¶ 4 (April 30, 2020). So none of Ohio’s pandemic response regulations changed the status quo on the activities Plaintiffs could engage in to procure signatures for their petitions.

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Unlike the Ohio orders, the Michigan executive orders in Esshaki did not specifically exempt First Amendment protected activity. To be sure, executive officials in Michigan informally indicated that they would not enforce those orders against those engaged in protected activity. See Mich. Dep’t of Health & Human Servs., Executive Order 2020-42 FAQs (Apr. 2020), https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-525278-,00.html. Of course, that promise is not the same as putting the restriction in the order itself. Cf. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (We “must presume that [the] legislature says in a statute what it means and means in a statute what is says there.”); Sosna v. Iowa, 419 U.S. 393, 399–400 (1975) (noting, in the context of the capable of repetition yet evading review exception to mootness, that just because a state official says they won’t enforce a statute against a party now doesn’t mean they won’t exercise their discretion to enforce the statute at a later time). But in any event, we did not address the significance of exemptions in Esshaki at all. By contrast, we believe that Ohio’s express exemption (especially for “petition or referendum circulators” specifically) is vitally important here.
What’s more, Ohio is beginning to lift their stay-at-home restrictions. On May 20, the Ohio Department of Health rescinded its stay-at-home order. Ohio Dep’t of Health, Director’s Order that Rescinds and Modifies Portions of the Stay Safe Ohio Order (May 20, 2020). We found a severe burden in Esshaki because Michigan’s stay-at-home order remained in effect through the deadline to submit ballot-access petitions. Considering all opportunities Plaintiffs had, and still have, to exercise their rights in our calculation of the burden imposed by the State’s regulations, see Mays, 951 F.3d at 785–86, Plaintiffs’ burden is less than severe. Even if Ohio’s stay-at-home order had applied to Plaintiffs, the five-week period from Ohio’s rescinding of its order until the deadline to submit an initiative petition undermines Plaintiffs’ argument that the State has excluded them from the ballot.
Plaintiffs’ claim effectively boils down to frustration over failing to procure as many signatures for their petitions (because of social distancing and reduced public crowds) as they would without the pandemic. But that’s not necessarily true. There’s no reason that Plaintiffs can’t advertise their initiatives within the bounds of our current situation, such as through social or traditional media inviting interested electors to contact them and bring the petitions to the

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electors’ homes to sign. Or Plaintiffs could bring their petitions to the public by speaking with electors and witnessing the signatures from a safe distance, and sterilizing writing instruments between signatures.
Moreover, just because procuring signatures is now harder (largely because of a disease beyond the control of the State) doesn’t mean that Plaintiffs are excluded from the ballot. And we must remember, First Amendment violations require state action. U.S. Const. amend. I (“Congress shall make no law . . . .” (emphasis added)); 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . .” (emphasis added)). So we cannot hold private citizens’ decisions to stay home for their own safety against the State. Because the State has not excluded Plaintiffs from the ballot, the burden imposed on them by the State’s initiative requirements cannot be severe. See Schmitt, 933 F.3d at 639.
Despite the pandemic, we believe that the more apt comparison is to our burden analysis in Schmitt. The plaintiffs there made a First Amendment challenge to Ohio’s restriction of judicial review for board of elections ballot decisions to petitions for a writ of mandamus. And we held that the burden was intermediate because there are some costs associated with obtaining legal counsel and seeking mandamus review. Id. at 641. So this prevents some proponents from seeking judicial review of the board’s exclusion of their initiative and constitutes more than a de minimis limit on access to the ballot. Id. Schmitt concluded that a burden is minimal when it “in no way” limits access to the ballot.3 Id. (quoting Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016)). Thus, the burden in Schmitt had to be intermediate. Same here. Requiring Plaintiffs to secure hundreds of thousands of signatures
3To be sure, this statement arguably conflicts with other articulations of what constitutes a minimal burden. See Burdick, 504 U.S. at 434–39 (because Hawaii’s election laws were reasonable and nondiscriminatory they imposed a minimal burden on the plaintiff’s First Amendment rights, even though they prevented the plaintiff from casting a vote for his preferred candidate); Daunt, 956 F.3d at 408 (classifying regulations that are “generally applicable [and] nondiscriminatory” as imposing a minimal burden); Taxpayers United, 994 F.2d at 297 (finding Michigan’s ballot initiative regulations minimally burdensome because they were “content-neutral, nondiscriminatory regulations that [were] reasonably related to the purpose of administering an honest and fair initiative procedure.”). Indeed, it’s hard not to conclude that the signature requirements in Taxpayers United necessarily limited ballot access. And in Burdick, the Supreme Court remarked that all “[e]lection laws will invariably impose some burden on individual voters.” 504 U.S. at 433. But the State doesn’t argue that its ballot initiative regulations impose only a minimal burden. And because those regulations satisfy intermediate scrutiny, they would survive under the framework for regulations that impose a minimal burden. So we proceed under the intermediate burden analysis discussed in Schmitt. 933 F.3d at 641.

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No. 20-3526

Thompson v. DeWine

Page 9

in support of their initiative is a burden. That said, Ohio requires the same from Plaintiffs now as it does during non-pandemic times. So the burden here is not severe.
Whether this intermediate burden on Plaintiffs’ First Amendment rights passes constitutional muster depends on whether the State has legitimate interests to impose the burden that outweigh it. See Burdick, 504 U.S. at 434. Here they offer two.4 Defendants claim the witness and ink requirements help prevent fraud by ensuring that the signatures are authentic. And the deadlines allow them time to verify signatures in an orderly and fair fashion, while also providing initiative proponents time to challenge any adverse decision in court.
These interests are not only legitimate, they are compelling. John Doe No. 1, 561 U.S. at 186 (“The State’s interest in preserving the integrity of the electoral process is undoubtedly important.”); Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008) (“[E]liminating election fraud is certainly a compelling state interest[.]”); Austin, 994 F.2d at 297 (“[S]tate[s] ha[ve] a strong interest in ensuring that its elections are run fairly and honestly,” as well as “in maintaining the integrity of its initiative process.” (internal quotation marks omitted)). The district court faulted Defendants for not narrowly tailoring their regulations. But Anderson-Burdick’s intermediate scrutiny doesn’t require narrow tailoring. Because the State’s compelling and well-established interests in administering its ballot initiative regulations outweigh the intermediate burden those regulations place on Plaintiffs, Defendants are likely to prevail on the merits.
II.
Unless the statute is unconstitutional, enjoining a “State from conducting [its] elections pursuant to a statute enacted by the Legislature . . . would seriously and irreparably harm [the State].” Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). Defendants have shown they are likely to prevail on the merits. Serious and irreparable harm will thus result if Ohio cannot conduct its
4Defendants also claim a third state interest: ensuring that each initiative on the ballot has a threshold amount of support to justify taking up space on the ballot. This interest is more appropriately related to Ohio’s number of signatures requirement. Jolivette v. Husted, 694 F.3d 760, 769 (6th Cir. 2012) (A State may legitimately “avoid[ ] overcrowded ballots” and “protect the integrity of its political processes from frivolous or fraudulent candidacies.”). But the district court did not enjoin the State’s enforcement of that regulation so it’s not properly before us in this motion for a stay pending appeal.

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No. 20-3526

Thompson v. DeWine

Page 10

election in accordance with its lawfully enacted ballot-access regulations. Comparatively, Plaintiffs have not shown that complying with a law we find is likely constitutional will harm them. So the balance of the equities favors Defendants. Finally, giving effect to the will of the people by enforcing the laws they and their representatives enact serves the public interest. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006). With all four factors favoring Defendants, we grant their motion for a stay pending appeal.
III.
Last, even though we grant Defendants’ motion for a stay pending appeal, we note that the district court exceeded its authority by rewriting Ohio law with its injunction. Despite relying heavily on Esshaki, the district court failed to apply its primary holding: “federal courts have no authority to dictate to the States precisely how they should conduct their elections.” ---F. App’x ----, 2020 WL 218553 at *2. In Esshaki we granted a stay for the affirmative portion of the district court’s injunction that (1) reduced the number of signatures required to appear on the ballot, (2) extended the filing deadline, and (3) ordered the State to permit the collection of signatures by electronic mail. While it may not have done the first of these, the court below did the second and third. The district court extended the filing deadline by almost a month, to July 31, and ordered Defendants to accept petitions electronically signed, under the plan Plaintiffs drafted.
Federal courts can enter positive injunctions that require parties to comply with existing law. But they cannot “usurp[] a State’s legislative authority by re-writing its statutes” to create new law. Id. The district court read this holding too narrowly; recognizing it could not modify the Ohio Code but remained free to amend the Ohio Constitution. Instead of simply invalidating Ohio’s initiative deadline and signature requirement, the district court chose a new deadline and prescribed the form of signature the State must accept. The Ohio Constitution requires elector approval for all amendments. Ohio Const. art. II, § 1a; id. art. XVI, §§ 1, 2. By unilaterally modifying the Ohio Constitution’s ballot initiative regulations, the district court usurped this authority from Ohio electors.

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No. 20-3526

Thompson v. DeWine

Page 11

The broader point is that the federal Constitution provides States—not federal judges— the ability to choose among many permissible options when designing elections. And because that’s where the decision-making authority is, federal courts don’t lightly tamper with election regulations. These concerns are magnified here where the new election procedures proffered by Plaintiffs threaten to take the state into unchartered waters. It may well be that the new methods for gathering signatures and verifying them proposed by Plaintiffs (using electronic signatures gathered online by third parties and identified by social security number) will prove workable. But they may also pose serious security concerns and other, as yet unrealized, problems. So the decision to drastically alter Ohio’s election procedures must rest with the Ohio Secretary of State and other elected officials, not the courts.
One final point, rewriting a state’s election procedures or moving deadlines rarely ends with one court order. Moving one piece on the game board invariably leads to additional moves. This is exactly why we must heed the Supreme Court’s warning that federal courts are not supposed to change state election rules as elections approach. See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam) (“This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”); Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam) (“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”). Here, the November election itself may be months away but important, interim deadlines that affect Plaintiffs, other ballot initiative proponents, and the State are imminent. And moving or changing a deadline or procedure now will have inevitable, other consequences.
There is no doubt that the COVID-19 pandemic and Ohio’s responsive restrictions to halt the spread of that disease have made it difficult for all Ohioans to carry on with their lives. But for the most part we are letting our elected officials, with input from public health experts, decide when and how to apply those restrictions. The election context is no different. And while the Constitution provides a backstop, as it must—we are unwilling to conclude that the State is infringing upon Plaintiffs’ First Amendment rights in this particular case.

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No. 20-3526

Thompson v. DeWine

Page 12

For these reasons, we GRANT Defendants’ motion for a stay pending appeal and DISMISS AS MOOT their motion for an administrative stay.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 12 filed 06/01/20 PageID.178 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAH PARKER, JUDY KELLOGG and PAUL ELY,
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.

Case No. 4:20-CV-11246 Hon. Matthew F. Leitman Mag. J. Michael J. Hluchaniuk

PLAINTIFF SAWARIMEDIA LLC’S REPLY BRIEF IN SUPPORT OF ITS
MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION1

1 NOTE: Plaintiffs’ counsel conferred in advance with the State’s counsel to advise that this Brief addresses a Petition Clause argument that the pro se Plaintiffs had not raised. If the Court so desires, Plaintiffs do not object to allowing the State an opportunity to submit a reasonable supplement on this issue.

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This case is about Plaintiffs’ fundamental right to petition the government for redress, U.S. CONST. amend. I, and the State’s well intentioned but unlawful violation of that and other rights. In response to Plaintiff’s 10-page pro se brief, the State responded with 32 pages that avoid the key issues and invite error – all in an effort to deny at most two initiatives a place on the ballot. The correct and constitutional decision is to grant the injunction Plaintiffs seek, which would prevent Defendants from applying certain rules to keep them off the ballot. Because of the fast-paced election season, prompt relief is necessary to have any meaningful redress.
ADDITIONAL BACKGROUND AND FACTS Plaintiffs filed this lawsuit pro se to challenge the constitutionality of the signature requirements and deadlines of Michigan’s legislative ballot-initiative process, see generally MICH. COMP. LAWS § 168.471, as applied during Governor Whitmer’s “Stay-At-Home Orders,” defined below. The Plaintiffs assert rights including equal protection, speech, association, ballot access and others. Reasonable briefing limitations prevent a discussion of them all. Further briefing is available upon request. This Reply Brief focuses on certain key rights and principles. In 2020, Plaintiffs circulated an initiative promoting the kinds of “earned time off credits” that are common in other States for inmates who engage in self-betterment and rehabilitation. The initiative raises timely political issues involving strained State budgets, prison overcrowding and the related danger of COVID-19
1

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facing correctional officers and inmates, among other things.
Such legislative initiatives are rooted in Michigan’s constitution. The State
quotes the relevant portion of MICH. COMP. LAWS Art. II, § 9, through which the
people have reserved their right to petition by initiative. (ECF No. 07, PageID.115.).
Under § 471 of Michigan’s Election Law, initiative petitions “must be filed with the
secretary of state at least 160 days before the election . . . if the legislature rejects or
fails to enact the proposed law.” MICH. COMP. LAWS § 168.471. Insofar as the state
constitution and laws violate the U.S. Constitution, the Secretary of State and Direc-
tor of Elections are not limited merely to interpreting those laws. They also have
relevant gap-filling powers to issue new rules that would provide relief to Plaintiffs.2
The parties agree that 340,047 signatures would usually be required during
this election cycle, absent this Court’s intervention. (Compare ECF No. 1 (Compl.),
2 Secretary Benson “shall promulgate rules” under Michigan’s Administrative Procedures Act (“APA”), MICH. COMP. LAWS §§ “24.201 to 24.328, . . . establishing uniform standards for state . . . ballot question petition signatures.” MCLS § 168.31(2). She also “shall . . . issue instructions and promulgate rules pursuant to the [APA] for the conduct of elections and registrations in accordance with the laws of this state.” MICH. COMP. LAWS § 168.31(1)(a). Similarly, “[t]he director of elections shall be vested with the powers and shall perform the duties of the secretary of state under . . . her supervision, with respect to the supervision and administration of the election laws.” MICH. COMP. LAWS § 168.32(1). The APA defines the term “rule,” and allows for gap-filling when a law is suspended. “ ‘Rule’ means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency.” MICH. COMP. LAWS § 24.207.
2

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PageID.6, with ECF No. 7 (Defs.’ Resp. Br.), PageID.116-117.) The parties also agree that a 180-day limit applies to the validity of signatures. MICH. COMP. LAWS § 168.472a. Thus, the Parties should recognize via simple math that a weekly average of at least 13,224 signatures shows a substantial modicum of support.
Defendants do not contest that during the 9½ weeks after Plaintiffs filed their ballot initiative petition and before the first Stay-At-Home Order entered (i.e., from January 16 to March 23, 2020), Plaintiffs acquired approximately 215,000 valid signatures. (See ECF No. 01, PageID.5-6 ¶¶ 22, 2; ECF No. 07, PageID.16-17.) Plaintiffs were apparently averaging over 22,600 signatures per week, despite the cold and unfavorable winter months and despite a 2-week period in March when national and State emergencies strongly squelched petition efforts. In other words, Plaintiffs almost doubled the necessary modicum, and they were on track to obtain more than 200,000 additional signatures during the last 9 weeks between March 23 and May 27, 2020, which would comfortably exceed the minimum amount.
Of course, the COVID-19 pandemic interfered. Initially, the State declared an emergency while allowing First Amendment protected activities to proceed. But beginning with Executive Order 2020-21 on March 23, 2020 (Exh. B, PageID.78), the State entered a series of executive orders requiring Michiganders to stay home and avoid almost any contact with non-household members (the “Stay-At-Home Orders” or “Orders”). As the State concedes, the Orders facially do not exempt or
3

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accommodate fundamental rights. (ECF No. 07, PageID.114.) Instead, the State made it a misdemeanor for Michigan residents to leave their homes in order to conduct ordinary activities that usually accompany ballot initiatives. (E.g., Exh. B, PageID.78 (“Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.”).) While the State contends that its “FAQ’s” offer an exception, that informal guidance suffers fatal flaws discussed below. The Stay-AtHome Orders went into effect on March 24, 2020 and remain in effect.3
Meanwhile, the Secretary of State and Director of the Bureau of Elections have enforced the Governor’s Orders, while holding strictly to the letter of ordinary laws and regulations governing the people’s right to petition for governmental redress, as well as their rights to speech, association and ballot access.
ARGUMENT 1. Additional Applicable Legal Standards
The balancing test and general standards for granting an ex parte temporary restraining order or a preliminary injunction are familiar. See, e.g., Stein v. Thomas, 222 F. Supp. 3d 539, 542 (E.D. Mich. 2016) (granting TRO in case impacting the
3 Eked out in roughly 2 or 3-week increments now spanning more than a third of the Plaintiffs’ 180-day petition-gathering period, the Orders arguably nullified a variety of fundamental rights, including rights to travel between states, see Roberts v. Neace, _ F. Supp. 3d. _, 2020 U.S. Dist. LEXIS 77987 (E.D. Ky. May 4, 2020) (citing numerous Supreme Court cases), to travel within a state, see Johnson v. City of Cincinnati, 310 F.3d 484, 496-98 (6th Cir. 2002), discussed in Cole v. City of Memphis, 839 F.3d 530, 535 (6th Cir. 2016), and to associate for political purposes.
4

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right to vote). Where, as here, the balance of the harms weighs much more heavily
upon Plaintiffs, injunctive relief is appropriate “even where [they] fail[ ] to show a
strong or substantial probability of ultimate success” if they “at least show[ ] serious
questions going to the merits.” Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009).
With respect to the factor involving a plaintiff’s likelihood of success, the
closer the plaintiff is to summary judgment, the more likely she is to succeed.4
Where, as here, the defendants bear substantive burden of production on the merits,5
movants such as Plaintiffs at least satisfy any burden of persuasion they may have
4 It stands to reason that where a party is entitled to a summary judgment under Federal Rule of Civil Procedure 56, there is not only a serious question or a strong likelihood of success under Rule 65, but also an actual entitlement to success. It defies logic to say that someone can be entitled to a final judgment without being entitled to preliminary relief to preserve the status quo. While a plaintiff seeking an injunction must do more than create a genuine issue sufficient to survive an adverse summary judgment, see McNeilly v. Terri Lynn Land, 684 F.3d 611, 615 (6th Cir. 2012) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)), the plaintiff need not do so much as to win a favorable summary judgment at the outset. But the more they can do so, the clearer their guarantee of success. 5 E.g., Meyer v. Grant, 486 U.S. 414, 426 (1988) (exacting scrutiny); Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 664-65 (1994) (intermediate scrutiny); J & B Entm't v. City of Jackson, 152 F.3d 362, 370-71 (5th Cir. 1998) (“under an intermediate scrutiny standard of review, the government bears the burden of justifying (i.e., both the burden of production and persuasion) the challenged statute.”); see Hassan v. City of N.Y., 804 F.3d 277, 301 (3d Cir. 2015) (“ ‘heightened scrutiny,’ . . . encompasses both ‘intermediate scrutiny’ and ‘strict scrutiny’ [and] the City bears the burden of production and proof with respect to both.”); see also Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391 (2000) (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny . . . will vary up or down with the novelty and plausibility of the justification raised.”). (All emphases added.)
5

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under Federal Rules 56 and 65 by “‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). While this burden-shifting consideration always impacts the Court’s evaluation of this factor, other cases might require more factual background and discovery. This case, however, turns overwhelmingly on the law, while Defendants’ admissions complete the facts. In cases like this, there is nothing more to discover before granting an injunction.
2. The Court Should Grant Injunctive Relief Because Plaintiffs Have Shown a First Amendment Violation, and the Balance of the Harms and Public Interest Weigh Decisively in Their Favor a. Plaintiffs Easily Demonstrate a Likelihood of Success i. The State’s Argument About Laches is Frivolous The State devotes 4 pages to a frivolous argument. Plaintiffs filed their case
on May 4 to seek exclusively declaratory and injunctive relief from a then-continuing harm. (ECF No. 01, PageID.12-13.) They seek to address the application of signature requirements on a post-Complaint filing deadline of May 27, as well as to address an imminent exclusion from the canvassing process and the ballot, which has not yet happened. It is settled that laches “does not prevent plaintiff[s] from obtaining [such] injunctive relief or post-filing damages.” Nartron Corp. v. STMicroelecs., Inc., 305 F.3d 397, 412 (6th Cir. 2002), quoted in Ohio A. Philip Randolph Inst. v. Smith, 335 F. Supp. 3d 988, (S.D. Ohio 2018) (Moore, J. Karen Nelson, sitting on 3-judge panel); see also Concerned Citizens of S. Ohio, Inc. v. Pine Creek
6

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Conserv. Dist., 429 U.S. 651, 653, 656 (1977) (allowing constitutional challenges to
proceed over a dissenting opinion that cited laches in 9-year delay). Even insofar as the doctrine could apply, it would not favor the State here.6
ii. The Orders Violate the First Amendment. Although the key path to relief for Plaintiffs focuses on enjoining the State’s
joint application of petition quotas and deadlines along with the Orders, a separate
point about the Orders alone provides a key baseline in the analysis. The Orders
directly burdened the Plaintiff’s right to petition and could not pass strict scrutiny.
Unlike the order at issue in Thompson v. Dewine, _ F.3d _, 2020 WL 2702483,
at *4 (6th Cir. 2020), the Michigan Stay-At-Home Orders do not specifically exempt
constitutionally protected conduct. Instead, they criminalize the common approach
to petitioning for redress. The State’s reliance on informal guidance to suggest that
it might tolerate protected activity falls short for at least three reasons. The Dewine court identified the most important one:7 an informal FAQ “is not the same as putting
6 Despite being pro se, Plaintiffs acted relatively swiftly. Meanwhile, the State has had time to fairly respond or change its behavior. It fully researched, briefed, and maintained its unconstitutional approach throughout the Esshaki case. By May, the State was ready to quickly answer these Plaintiffs’ case when this Court asked. The State suffered no prejudice due to any plaintiff and has only itself to blame for failing to adjust its election process sooner. If they sought relief immediately, they also could not know if the Stay-at-Home Order would present only a short interruption. Compare Thompson v. Dewine, _ F.3d _, 2020 WL 2702483, at *4 (6th Cir. 2020) (burden not severe where order lifted before deadline). 7 The Order also facially demands to be construed broadly. (Id.) Further, the FAQ is obscure to the general public. On the official page entitled Frequently Asked
7

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the restriction in the order itself.” (PageID.163 (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992); Sosna v. Iowa, 419 U.S. 393, 399–400 (1975).)
Because the Orders criminalize conduct when advocating an initiative, the Court’s opinion in Meyer v. Grant, 486 U.S. 414 (1988), best guides the analysis, while offering a distinction that is even more helpful here. There, the Court held unconstitutional a law that criminalized paying initiative petition-circulators. See id. at 416. By reducing the number of circulators, the law not only restricted their individual speech but also made public debate of the issue less likely. See id. at 422-23. Moreover, “[t]he First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for doing so.” Id. at 424. The fact that they could use “other means to disseminate their ideas,” could not save a law that “restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.” Id. at 424. Focusing on the impact on their advocacy, id. at 421, the Court concluded that the law burdened “core political speech,” id., where protection “is ‘at its zenith’ [and] the burden that [the state] must overcome is well-nigh insurmountable,” id. at 425. The state failed to produce enough evidence to satisfy scrutiny.
COVID-19 Questions on May 31, 2020, undersigned counsel did not see any item discussing “expressive activities” within the first 20 pages of voluminous questions, and a search in the page’s search-bar for “expressive” returned zero results. (https://www.michigan.gov/coronavirus/0,9753,7-406-98810---,00.html.) On the other hand, a search specifically for “First Amendment” did produce results.
8

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Just as in Meyer, these Orders criminalize conduct that prevents petitioners
from engaging potential supporters in one-on-one political discourse, which for their
less-funded, grassroots campaign is clearly the most economical, fundamental and
effective method. Worse, the Orders did not merely prevent some of Plaintiffs’ peti-
tion-circulators from advocating in this chosen fashion. They prevented all from do-
ing so. The burden on the core right is even more severe than in Meyer.
The burden is also more direct in relation to the Petition Clause, rather than the Speech Clause analyzed in Meyer.8 Justices widely agree that people who create, circulate and promote ballot initiatives engage in “core” protected activity.9 Such
citizens directly “petition the Government for a redress of grievances.” U.S. CONST.
amend. I. “Petitioning the government and participating in the traditional town meet-
ing were precursors of the modern initiative and referendum.” Doe, 561 U.S. at 223 (Scalia, J., concurring).10 In fact, “[t]he right to petition is in some sense the source
8 Although Meyer is a speech case, whereas the Order directly burdens fundamental rights under “the Petition Clause, not the Speech Clause,” Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011), the analyses of these “cognate rights” are closely related. Cf. id. at 388-89 (“Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims.”). 9 The Justices may disagree about other points relating to speech and association, but they agree that circulating an initiative is a quintessential way to petition for redress. If additional briefing would be useful, Plaintiffs can provide it. 10 “The Petition of Right occupies a place in English constitutional history superseded in importance, perhaps, only by Magna Carta itself and the Declaration of Right of 1689. * * * The following years saw use of mass petitions to address matters
9

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of other fundamental rights, for petitions have provided a vital means for citizens to request recognition of new rights and to assert existing rights against the sovereign.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 397 (2011) (Kennedy, J.).
Insofar as the State now observes that “[t]hese mechanisms of direct democracy are not compelled by the Federal Constitution,” Doe, 561 U.S. at 212 (Sotomayor, J., concurring), that only means the Constitution’s negative ban on abridging the right may not create a positive right requiring every State to formalize an initiative process. Once Michigan created a process, Plaintiffs’ use of it fell within the “core” of the petition right. While Michigan had leeway to initially tailor a reasonable process, it could not ban otherwise legitimate activity in midstream as the Orders did here. Just as in Meyer, the State’s reliance on its freedom to impose limitations on a state-created right “is misplaced.” 564 U.S. at 424.
Like the state’s interest in Meyer of preventing fraud and protecting the integrity of the process, Michigan has some interest in protecting public health. But that can also be protected through social distancing, masks, and other hygiene measures. See also Roberts v. Neace, 958 F.3d 409, _ [at *8] (6th Cir. 2020). Michigan could also have done what Ohio did; namely, exempt First Amendment advocacy from the
of public concern.” Guarnieri, 564 U.S. at 395. Later, in the Colonies, “[p]articipation by ballot and petition not only assured popular control of government, but also attached to each citizen responsibility for the nation’s laws, or lack thereof.” Higganson, Note: A Short History of the Right To Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 162 (1986), cited in Guarnieri, 564 U.S. at 394.
10

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Orders. In the 21st Century, narrower and better measures are necessary to address
not only the disease, see Wendy E. Parmet and Michael S. Sinha, Covid-19—The
Law and Limits of Quarantine, 382 NEW ENG. J. MED. 15 (Apr. 2020), available at
https://www.nejm.org/doi/pdf/10.1056/nejmp2004211), but also the legal consequences of taking responsive action.11 No matter how one construes the Supreme
Court’s precedents, strict scrutiny applies to the direct and severe burden that the
Orders impose on the right to petition. Given the availability of other hygiene
measures, the Orders would not even satisfy intermediate scrutiny. Either way, the
State has not satisfied its evidentiary burden. The Orders are unconstitutional.
Finally, this discussion of petition rights helps to distinguish Thompson v.
Dewine, while also resolving other questions about that opinion. The opinion is best
understood as (1) strictly involving the right to ballot access while declining to ad-
dress the right to petition; and (2) involving state action that expressly exempted First Amendment activity.12 The latter construction also resolves dicta about rational
11 In extraordinary circumstances, sometimes one must break the law to do the right thing. Dr. Martin Luther King, Jr., Letter From a Birmingham Jail (April 16, 1963). With the intent to protect Michiganders from COVID-19 and sometimes from our own stupidity, Governor Whitmer entered a series of morally wise but unconstitutional Orders. The Supreme Court recognizes, “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.” A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528 (1935). 12 The Thompson court also distinguished the Michigan Orders because the Ohio Stay-at-Home Order was lifted and the state thus arguably provided the parties with
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basis review, (PageID.161), which is otherwise difficult to harmonize.13
iii. The Joint Application of the Orders and the State’s Petition Rules Violate the First Amendment.
By choosing to endorse and enforce the Governor’s Orders, the Secretary of
State and the Director added a requirement to the State’s initiative process. Moreo-
ver, the State imposed the new rules mid-stream, after citizens already relied upon a
preexisting process. The interruption lasted for a longer period in advance of the
deadline than in Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich. Apr. 20,
2020).14 No matter how one slices it, that joint application adds to the already-severe
an opportunity to exercise their ballot-access rights and undermined their assertion that they were excluded from the ballot. Id. at *4. 13 Had the court acknowledged the fundamental right to petition and had it found that the stay-home order reached that right, strict scrutiny could scarcely have been avoided given how direct the burden would have been. Instead, the stay-home order there arguably carved out and exempted First Amendment-protected activity altogether. Insofar as that order – as construed by the Sixth Circuit – actually refrained from imposing a burden on fundamental rights either facially or in its enforcement, the court might consistently hold that neither form of heightened scrutiny applied. That, in turn, would make sense of the court’s otherwise outlier-dicta about rational basis review, (PageID.161), which only applies when fundamental rights are not affected. Compare Burdick v. Takushi, 504 U.S. 428, 434. Any broader reading of the dicta puts a too-quick gloss on how the Burdick Court’s descriptive nods to “reasonable” measures fits into the Court’s prescriptive jurisprudence in Anderson-Burdick and beyond. Cf. id. at 434, cited in PageID.161. 14 The Stay-at-Home Order cost the parties in Esshaki about a month of normal signature collection. However, the Plaintiffs here were denied over two months from the beginning of the Order until the May 27, 2020 deadline. “So Michigan abruptly prohibited the plaintiffs from procuring signatures during the last month before the deadline, leaving them with only the signatures that they had gathered to that point.” Thompson, at *3.
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and constitutionally unjustified burden the Orders alone imposed. Finally, since the measures here directly burdened an express right in the Petition Clause, they receive even more scrutiny than they did vis-à-vis candidates in Esshaki who arguably asserted derivative rights. The severe burden there already warranted strict scrutiny.15
In response, Defendants’ cite several interests – some compelling, others important. None satisfy their burden at any heightened level of scrutiny. Like the Meyer defendants, the State relies on its interest in fraud prevention. But just as in Meyer, other state laws proscribing fraud are better tailored and adequate to that end. Risks of fraud and corruption are also lower for ballot initiatives than for candidates. See Buckley v. Amer. Const. L. Found., 525 U.S. 182, 203 (1999). In any event, the State faces only two petitions here (see ECF No. 07, PageID.133), and it fails to provide any actual evidence of fraud surrounding this election cycle.
Defendants express a concern about orderly elections, “easing administrative burdens on election officials,” and the burdens involved in canvassing perhaps “hundreds of thousands of signatures” between May 27 and July 24, 2020. (See ECF No.
15 Here, the same activity – signature gathering – is virtually impossible. That burden on Plaintiffs is more severe than in Esshaki, considering how many more signatures are needed to receive ballot access. Plaintiff Essahki needed 1,000 signatures. See MCL § 168.544f. Plaintiffs need 340,047, absent this Court’s relief. The same restrictions apply – the Orders, a signature threshold, and a deadline. The same result occurs – exclusion from the ballot. Unlike the parties in Thompson, the jointly applied restrictions result in the “exclusion or virtual exclusion from the ballot. Schmitt v. LaRose, 933 F.3d 628, 639 (2019).
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07, PageID.133-134.) The State reviewed three times as many measures in as much time in 2012. See https://ballotpedia.org/Michigan_2012_ballot_measures. It has enough time. Moreover, if the State fills the gap of a now-stricken signature requirement by imposing a lower signature quota, it will proportionately lessen its task. For example, canvassing 50% as many signatures should take roughly half as much time. That task is already expedited by random sampling measures. (Id., PageID.118.)
As in Esshaki, Defendants assert an interest in “ensuring a modicum of support” for initiatives. (Id., PageID.132.) The Supreme Court has acknowledged that a lower 5% requirement fully satisfied this interest, see Meyer, 486 U.S. at 420, and 4% is also adequate in some states, see Doe, 561 U.S. at 190-91 (Washington). The State can decide how much of a modicum it is administratively prepared to process. As of May 4, 2020, Plaintiffs collected 215,000 valid signatures – more than 5% of the relevant set of voters – at a pace comfortably expected to exceed the ordinary requirement. This is a serious ballot initiative with a large base of support. The State has not and cannot meet its burden to demonstrate that exclusion sufficiently advances its interest in ensuring a modicum of support. The State fails to advance evidence or support to meet any level of scrutiny, much less strict scrutiny, and Plaintiffs are therefore very likely to succeed on the merits.
b. Plaintiffs Will Be Irreparably Harmed Absent Relief In relation to the point Plaintiff already raised that “even minimal
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infringement upon First Amendment,” Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989), the State concedes at least that “there is an undeniable burden imposed by these regulations on Plaintiffs.” (ECF No. 07, PageID.127.) Having admitted that burden, irreparable injury exists. Moreover, without relief, Plaintiffs’ substantial investment of time, money, grassroots will, and political capital, will be wasted.
c. The Balance of Harms and Public Interest Favor an Injunction. Unlike Plaintiffs, the State does not face significant harms. Firstly, in terms of administrative burden, only two petitions are at issue, and only one deadline has elapsed. As noted above, the State has plenty of time before November to proceed in an orderly fashion to process these initiatives. Moreover, if the State cuts its requirement in half, it only needs to do half the work. Secondly, in terms of the interest in effectuating Michigan’s constitution and laws, this interest exists in every case dealing with an unconstitutional state constitutional provision or law. [CITE]. Moreover, the interest recognized in Maryland v. King (PageID.138) in advancing voters’ interest in vindicating a representative democracy is offset by their interest here in direct democracy. Through the Orders, moreover, the State disrupted – rather than maintained – the settled public expectations that usually attend an established election-law regime. Thirdly, in terms of the general overlap of the State and public interests, one thing about the pandemic merits mention. If the Court were to allow the State to insist that petitioners engage in one-on-one contact despite the COVID-
15

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19 pandemic, that approach would impose on the petitioners and everyone with

whom they had contact and increased risk of debilitating or deadly infection. Addi-

tionally, “[i]t is always in the public interest to prevent the violation of a party’s

constitutional rights.” Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th

Cir. 2014). The failure to meet normal deadlines and thresholds amid a global pan-

demic cannot outweigh Plaintiffs’ recognized fundamental rights.

CONCLUSION

The combination of the State’s Stay-At-Home Orders, its signature threshold,

and the signature deadline jointly and unconstitutionally burden Plaintiffs’ First

Amendment rights to petition the government for redress, as well as their rights to

speech, association, assembly, ballot access and equal protection. A preliminary in-

junction is both necessary and proper to avoid a greater harm.

Respectfully Submitted,

June 1, 2020

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

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PROOF OF SERVICE I hereby certify that on June 1, 2020, I caused the aforementioned and attached

document to be electronically filed through the Court’s electronic CM/ECF filing

system, which will serve a copy and notice of filing on every attorney of record for

Defendants. I also caused to be served via email the following parties:

Judy Kellogg, In Pro Per, judy kellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.rgeenyard@yahoo.com

I declare under the penalty of perjury that the above statements are true to the best

of my knowledge, information, and belief.

Respectfully Submitted,

June 1, 2020

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

17

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 17 filed 06/11/20 PageID.220 Page 1 of 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, et al.,

Plaintiffs, v.

Case No. 20-cv-11246 Hon. Matthew F. Leitman

GRETCHEN WHITMER, et al.,

Defendants. __________________________________________________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION (ECF No. 2)

Under Michigan law, citizens who sought to have an initiative proposal placed

on the 2020 general election ballot were required to collect more than 340,000

signatures by May 27, 2020. Likewise, Michigan law required certain candidates for

Congress who wished to appear on the 2020 primary ballot to obtain 1,000 signatures

by April 21, 2020. Against the backdrop of these ballot-access requirements, and in

order to combat the COVID-19 pandemic, on March 23, 2020, Defendant Governor

Gretchen Whitmer began issuing executive orders that required Michigan residents to

stay at home except in very limited circumstances. Those orders remained in effect for

more than two months. Notwithstanding the Governor’s orders, the State of Michigan

continued to strictly enforce its ballot-access signature requirements and filing

deadlines against candidates and citizens wishing to place initiatives on the ballot. As

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a result, some candidates and initiatives that likely would have qualified for the ballot were excluded from the ballot.
A candidate for Congress recently filed suit alleging that the combination of Governor Whitmer’s executive orders and the State’s strict enforcement of its ballotaccess requirements effectively precluded him from obtaining access to the ballot and thereby imposed a severe and intolerable burden on his First Amendment rights. United States District Judge Terrence Berg of this Court and the Sixth Circuit agreed and enjoined the State from strictly enforcing its signature requirements and filing deadlines against the candidate. See Esshaki v. Whitmer, --- F.Supp. 3d ---, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020) (Berg., J.), aff’d in part and rev’d in part, Esshaki v. Whitmer, --- F. App’x ---, 2020 WL 2185553 (6th Cir. May 5, 2020).
In this action, Plaintiff SawariMedia LLC, a civil-rights organization that seeks to place an initiative on Michigan’s 2020 general election ballot, brings a claim that mirrors the one brought in Esshaki. SawariMedia alleges Governor Whitmer’s stay-athome orders, together with strict enforcement of Michigan’s signature requirement and filing deadline, impose a severe and impermissible burden on its First Amendment rights. For the same reasons that Judge Berg and the Sixth Circuit barred strict enforcement of the ballot-access signature requirement and filing deadline against the plaintiff in Esshaki, this Court will enjoin strict enforcement of them against SawariMedia. Accordingly, SawariMedia’s motion for a preliminary injunction (see Mot., ECF No. 2) is GRANTED on the terms set forth below.
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I The Michigan Constitution “reserve[s]” to “the people” the “power to propose laws and to enact and reject laws, called the initiative.” Mich. Const., 1963, art. 2, § 9. In order to “invoke the initiative,” a citizen must submit “petitions signed by a number of registered electors, not less than eight percent … of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” Id. A total of 4,250,585 votes were cast in Michigan’s last general election for Governor.1 Thus, 340,047 signatures were required in order to secure a spot for an initiative proposal on Michigan’s 2020 general election ballot. Under Michigan law, the petitions containing those signatures had to be filed with the Michigan Secretary of State by not later than May 27, 2020. See Mich. Comp. Laws § 168.471 (requiring the filing of initiative petitions with the Secretary of State “at least 160 days before the election at which the proposed law would appear on the ballot”). Once signed petitions are filed with the Secretary of State, the Board of State Canvassers “shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered [voters].” Mich. Comp. Laws § 168.476. During this canvassing process, the Board of State Canvassers, among other things, reviews a “random sampl[e]” of signatures to determine if the signatures are valid. (Decl. of Defendant Jonathan Brater, Michigan Director of Elections, at ¶7, ECF
1 See https://mielections.us/election/results/2018GEN_CENR.html. 3

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No. 7-2, PageID.149-151.) “Every petition within the random sample is reviewed for facial validity,” and valid signatures are then “checked against the Qualified Voter File [] to verify the signer’s registration status.” (Id., PageID.150.) The canvassing process also allows interested parties to challenge a determination made about a signature’s validity. (See id.) “It takes approximately 60 days to complete the random sampling and challenge process.” (Id., PageID. 151.) The Board of State Canvassers must complete their canvass and “shall make an official declaration of the sufficiency or insufficiency of an initiative petition no later than 100 days before the election at which the proposal is to be submitted.” Mich. Comp. Laws § 168.477(1).
If the Board of State Canvassers declares that an initiative petition has sufficient signatures, the Michigan Legislature then has “40 session days” to either “enact[]” the proposal “without change or amendment” or reject the proposal. Mich. Const., 1963, art. 2, § 9. “If the Legislature does not enact the proposal within 40 session days, the Board of State Canvassers must prepare the proposal for the ballot by assigning a numerical ballot designation and approving ballot wording by no later than the 60th day prior to the election.” (Brater Decl. at ¶11, ECF No. 7-2, PageID.151-152, citing Mich. Comp. Laws §§ 168.474a, 168.480.) Ballots are then prepared, printed, and mailed to military and overseas voters. See Mich. Comp. Laws §§ 168.759a, 168.714.
For the 2020 general election, the relevant dates are as follows:
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DATE May 27, 2020
May 27, 2020 – July 23, 2020 July 24, 2020
September 4, 2020
September 21, 2020 November 3, 2020

ACTION
Petitions for initiatives that include at least 340,047 valid signatures must be filed with the Michigan Secretary of
State Board of State Canvassers canvass
petitions Board of State Canvassers declares whether an initiative petition is sufficient
or insufficient Board of State Canvassers must assign
numerical designation and approve ballot wording for all statewide proposals
Printed ballots must be made available for delivery to overseas and military
voters General election

II A SawariMedia “is a coalition of like-minded individuals who work together to educate and promote their political views in the public arena.” (Decl. of Amani Sawari, owner and manager of SawariMedia, at ¶2, ECF No. 2, PageID.66.) In the “summer of 2019,” SawariMedia media began planning to place an initiative on Michigan’s 2020 general election ballot pursuant to the process described above. (Id. at ¶4, PageID.66.) That initiative seeks “to allow all [Michigan] prisoners regardless of the date on which they were sentenced, the right to earn time off their sentences by incentivizing good behavior, academic and professional achievement.” See http://mprca.info/petition.

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SawariMedia has “hired campaign staff” and has been “diligently campaigning” in support of the initiative for nearly a year. (Sawari Decl. at ¶4, ECF No. 2, PageID.66.2) It has, among other things, “purchased a website devoted to the initiative, hosted several town-hall meetings [related to] the initiative, conducted multiple training sessions across the state for canvassers of the [initiative], and purchased more than thirty-four thousand (34,000) copies of the [initiative’s ballot] petition.” (Id.) It has also “implemented a plan to collect the [required] number of signatures” so that the initiative qualifies to be placed on the November 2020 general election ballot. (Id. at ¶6, PageID.67.) SawariMedia formally filed its ballot initiative petition with Defendant Michigan Secretary of State on January 16, 2020, and it began collecting signatures as of that date.
B By early March, SawariMedia appeared to be well on its way to collecting a sufficient number of signatures to place its initiative on the November 2020 general election ballot. At that time, it had “collected approximately two-hundred fifteen thousand (215,000) valid signatures” in support of the initiative – an average of over
2 Ms. Sawari’s declaration in the record is unsigned. During the June 5, 2020, hearing on Plaintiffs’ motion, Ms. Sawari affirmed under oath that the statements in her declaration are true and accurate.
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22,000 per week. (Id. at ¶¶ 3, 7, PageID.66-67.) And it had nearly two and a half months to collect the remaining 125,000 signatures that it needed under Michigan law. But then, the world changed.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of the COVID-19 coronavirus in Michigan.3 Governor Whitmer declared a “State of Emergency” that same day. The State of Emergency executive order recognized that COVID-19 “can easily spread from person to person” and could “result in serious illness or death.”4 As the virus began to spread rapidly across the State (and country), this Court closed to the public. Sports leagues stopped holding games. Churches, synagogues, and mosques stopped holding in-person services. And the federal government issued a series of recommended guidelines to “slow the spread” of the virus. Large gatherings of people stopped taking place, and citizens were urged not to leave their homes and not to allow others (even family) to visit their homes.
At this same time, Governor Whitmer began issuing a series of executive orders to require “social distancing” and mitigate the spread of the virus in Michigan. These executive orders included:
3 See Gov. Whitmer Executive Order 2020-04, Declaration of State of Emergency, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html. 4 Id.
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 A March 13, 2020, executive order that prohibited the assembly of more than 250 people in a shared space and closed all K-12 school buildings in the state.5 This order provided that it did not “abridge protections guaranteed by the state or federal constitution under these emergency circumstances” (the “Constitutional Exemption Language”).
 A March 16, 2020, executive order that closed various places of public accommodation, such as restaurants, bars, and gyms.6 This order did not include the Constitutional Exemption Language.
 A March 19, 2020, executive order that prohibited the assembly of more than 50 people in a shared space.7 This order did include the Constitutional Exemption Language.
On March 23, 2020, Governor Whitmer issued what has become known as the
“Stay-at-Home Order.”8 The Stay-at-Home Order, subject to very limited exceptions,
required “all individuals currently living within the State of Michigan … to stay at home
or at their place of residence. Subject to the same exceptions, all public and private
5 See Gov. Whitmer Executive Order 2020-5, Temporary Prohibition on Large Assemblages and Events, Temporary School Closures, https://www.michigan.gov/ whitmer/0,9309,7-387-90499_90705-521595--,00.html. 6 See Gov. Whitmer Executive Order 2020-9, Temporary Restrictions on the Use of Places of Public Accommodation, https://www.michigan.gov/whitmer/0,9309,7A387-90499_90705-521789--,00.html. 7 See Gov. Whitmer Executive Order 2020-11, Temporary Prohibition on Large Assemblages and Events, Temporary School Closures, https://www.michigan.gov/ whitmer/0,9309,7-387-90499_90705-521890--,00.html. 8 See Gov. Whitmer Executive Order 2020-21, Temporary Requirement to Suspend Activities That Are Not Necessary to Sustain or Protect Life, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html.
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gatherings of any number of people occurring among persons not part of a single household [were also] prohibited.”9 The Stay-at-Home Order further prohibited all persons and entities from “operat[ing] a business or conduct[ing] operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.”10 It also required all persons to remain at least six feet apart. Importantly, and unlike the executive orders issued on March 13 and March 19, the Stay-at-Home Order did not include the Constitutional Exemption Language. On April 9, April 24, and May 1, 2020, Governor Whitmer issued additional executive orders extending the requirement that Michigan residents stay in their homes.11 None of those extensions included the Constitutional Exemption Language.
On May 7, May 18, and May 21, Governor Whitmer again issued executive orders extending the stay-at-home provisions.12 While these orders still required Michiganders to remain at home, each of the extensions did include the Constitutional Exemption Language.13 The May 21 extension of the Stay-at-Home Order kept in place
9 Id. 10 Id. 11 See Gov. Whitmer Executive Orders 2020-42, 2020-59, and 2020-70. 12 See Gov. Whitmer Executive Orders 2020-77, 2020-92, and 2020-96. 13 The April 9, April 24, May 1, May 7, May 18, and May 21 executive orders extending the stay-at-home requirement each contained some limited modifications to the initial Stay-at-Home Order. Aside from the inclusion of the Constitutional
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the requirement that Michigan residents stay at home through and beyond May 27, 2020 – the filing deadline for initiative petitions.
Each of Governor Whitmer’s executive orders provided that “[c]onsistent with [Mich. Comp. Laws §] 10.33 and [Mich. Comp. Laws §] 30.405(3), a willful violation of this order is a misdemeanor.”14
C Beginning in early-to-mid March, in order to comply with Governor Whitmer’s executive orders, SawariMedia “postponed many of [its] efforts to collect signatures” in support of its ballot initiative. (Sawari Decl. at ¶10, ECF No. 2, PageID.67.) Unable to collect signatures in person, SawariMedia attempted to collect signatures by mailing petitions to potentially interested signers. But that effort cost “a substantial amount of money” and was hampered by lengthy delays in the processing of mail in Michigan. (Id. at ¶23, PageID.69.) SawariMedia insists that Governor Whitmer’s executive orders, and the enforcement of those orders, “made it impossible” to collect the required number of signatures by the May 27, 2020, filing deadline. (Id. at ¶20, PageID.69.)
III This action is brought by SawariMedia and Co-Plaintiffs Deborah Parker, Judy Kellogg, and Paul Ely against Governor Whitmer, Michigan Secretary of State Jocelyn
Exemption Language in the May 7, May 18, and May 21 executive orders, none of the other modifications are relevant to the Court’s analysis. 14 See, e.g., Gov. Whitmer Executive Orders 2020-21, 2020-77, 2020-96.
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Benson, and Michigan’s Director of Elections Jonathan Brater. Parker, Kellogg, and Ely are each Michigan citizens who say that they would have signed SawariMedia’s ballot initiative petition but for Governor Whitmer’s executive orders. (See Declarations, ECF No. 2, PageID.71-76.) In addition, Parker says that she “requested that a copy of the petition be mailed to [her]” so that she could sign the petition and return it to SawariMedia, but she has “yet to receive it in the mail.” (Parker Decl. at ¶8, ECF No. 2, PageID.72.)
Plaintiffs’ Complaint contains three counts. In Counts I and II, Plaintiffs allege that Defendants’ strict enforcement of the May 27, 2020, filing deadline and the requirement that SawariMedia collect 340,047 signatures under the present circumstances violates their First and Fourteenth Amendment rights. (See Compl. at ¶¶ 49-60, ECF No. 1, PageID.10-11.) In Count III, Plaintiffs claim that Defendants have violated Plaintiffs’ Fourteenth Amendment rights by “refus[ing] to apply this Court’s previous Order in Esshaki v. Whitmer, et al.” to SawariMedia’s ballot initiative. (Id. at ¶¶ 61-65, PageID.12.)
Plaintiffs have also filed a motion for a temporary restraining order and/or a preliminary injunction. (See Mot., ECF No. 2.) In the motion, Plaintiffs ask the Court to enter an order prohibiting Defendants from enforcing the signature requirement and filing deadline for ballot initiative petitions. (See id.)
Plaintiffs mailed copies of their Complaint and motion to the Court on May 4, 2020. However, due to a delay in docketing pro se filings in this Court due to reduced
11

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in-person staffing during the COVID-19 pandemic, neither document was processed or posted to the Court’s docket until May 20, 2020. (See Docket). Once the Court became aware of this action and the emergency nature of Plaintiffs’ motion, it immediately scheduled and held an on-the-record telephonic status conference with Plaintiffs and counsel for the Defendants, and it set an expedited briefing schedule on Plaintiffs’ motion. Defendants filed their response to the motion on May 27, 2020, Plaintiffs filed their reply on June 1, 2020, and Defendants filed a sur-reply. (See Def.s’ Resp. Br., ECF No. 7; Pl.s’ Reply Br., ECF No. 12; Def.s’ Sur-reply, ECF No. 16.) The Court held a hearing on the motion on June 5, 2020.
IV A preliminary injunction “is an extraordinary and drastic remedy.” S. Glazer’s Distribs. of Ohio v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017) (quoting Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). Although the movant “is not required to prove his case in full at a preliminary injunction hearing,” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007), a preliminary injunction should not “be granted lightly.” S. Glazer’s, 860 F.3d at 849. A district court balances four factors when considering a motion for a preliminary injunction or a temporary restraining order: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause
12

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substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Id. (quotations omitted). The last two factors “merge when the Government is the opposing party.’” Nken v. Holder, 556 U.S. 418, 435 (2009).
“[T]hese are factors to be balanced, not prerequisites to be met.” Id. “[N]o one factor is controlling.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). “When evaluating these factors for an alleged constitutional violation, the likelihood of success on the merits often will be the determinative factor.” Thompson v. DeWine, --- F.3d ---, 2020 WL 2702483, at *2 (6th Cir. May 26, 2020) (internal quotation marks omitted). See also Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012) (recognizing that in First Amendment cases, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of succeed on the merits”).
V The Court begins with the first factor of the preliminary injunction analysis: whether Plaintiffs have shown a substantial likelihood of success on the merits of their claims. The Court concludes that they have.
A “[A]lthough the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution[.]” Thompson, 2020 WL 2702483, at *2. Sixth Circuit precedent “dictates” that this Court review Plaintiffs’ First Amendment challenges to Michigan’s signature requirement and filing deadline for ballot initiatives
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“under the Anderson-Burdick framework.”15 Id. Analysis under that framework
involves several steps:
First, we determine the burden the State’s regulation imposes on the plaintiffs’ First Amendment rights. When States impose “reasonable nondiscriminatory restrictions[,]” courts apply rational basis review and “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547, (1983)). But when States impose severe restrictions, such as exclusion or virtual exclusion from the ballot, strict scrutiny applies. Id. at 434, 112 S.Ct. 2059; Schmitt [v. LaRose], 933 F.3d [628,] 639 [6th Cir. 2019] (“The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.”). For cases between these extremes, we weigh the burden imposed by the State’s regulation against “ ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564).
Id. at ** 2-3 (emphasis added). See also Esshaki, 2020 WL 1910154, at *4 (describing
the applicable Anderson-Burdick framework).
B
1
The Court begins its analysis under Anderson-Burdick by determining the
severity of the burden that Defendants have placed upon Plaintiffs’ First Amendment
15 See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).
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rights. In two very recent cases, another Judge on this Court (Judge Berg) and the Sixth Circuit evaluated the First Amendment burdens imposed by the combination of a state’s enforcement of ballot-access provisions and a Governor’s stay-at-home orders issued during the COVID-19 pandemic.
The first of those cases is Esshaki, supra. The plaintiff in that case, Eric Esshaki, was a candidate for the United States Congress in Michigan’s Eleventh Congressional District. See Esshaki, 2020 WL 1910154, at *2. Under Michigan law, Esshaki needed to collect 1,000 valid signatures by April 21, 2020, in order to qualify for the August 4, 2020, primary ballot. See id. At the time Governor Whitmer issued the Stay-at-Home order on March 23, 2020, Esshaki had collected approximately 700 signatures. According to Esshaki, Governor Whitmer’s Stay-at-Home Order “for all practical purposes denied [him] the opportunity to collect the [remaining] signatures that [he] needed during the timeframe between March 23 and April 21.” Id. Esshaki then filed suit against Governor Whitmer, Director Brater, and Secretary Benson. He claimed that enforcement of the signature requirement and filing deadline “under the present circumstances” and “without exception for consideration or consideration of the COVID-19 pandemic or [Governor Whitmer’s] Stay-at-Home Orders” violated his First Amendment rights. Esshaki, 2020 WL 2185553, at *1.
Judge Berg analyzed Esshaki’s claim under the Anderson-Burdick framework and determined that the combination of the State’s ballot access laws and the Stay-atHome Order placed a severe burden on Esshaki’s constitutional rights. Judge Berg
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explained that the State “pulled the rug out from under” Esshaki and other candidates
who needed to circulate petitions while the Stay-at-Home order was in place:
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 speech and free association rights under the First Amendment, as well as his due process and equal protection rights under the Fourteenth Amendment—as expressed in his effort to place his name on the ballot for elective office. See Libertarian Party of Ky. [v. Grimes], 835 F.3d [570, 574 (6th Cir. 2016)] (“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).
Esshaki, 2020 WL 1910154, at *6.
On appeal, the Sixth Circuit held that Judge Berg had “properly applied the
Anderson-Burdick test” and had “correctly determined that the combination of the
State’s strict enforcement of the ballot-initiative provisions and the Stay-at-Home
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Orders imposed a severe burden on the plaintiff’s ballot access, so strict scrutiny applied.” Esshaki, 2020 WL 2185553, at *1.
The second case is Thompson, supra. In Thompson, “three individuals and two organizations” were “obtaining signatures in support of initiatives to amend the Ohio Constitution.” Thompson, 2020 WL 2702483, at *1. “While Plaintiffs were advancing their petitions for the November 3, 2020 general election, the world was stunned by the advent of [the COVID-19 pandemic].” Thompson, 2020 WL 2557064, at *1 (S.D. Ohio May 19, 2020). “In an effort to respond rapidly to this threat, Ohio Governor Mike DeWine, in Executive Order 2020-01D, authorized Ohio Department of Health Director Amy Acton, M.D., to formulate general treatment guidelines to curtail the spread of COVID-19 in Ohio. In accordance with Governor DeWine’s Executive Order, Dr. Acton issued several Director’s Orders, one of which required all individuals living in Ohio to stay home beginning March 22, 2020 subject to certain exceptions.” Id.
The plaintiffs in Thompson then filed suit against Governor DeWine and others. The plaintiffs claimed that “Ohio’s strict enforcement of its requirements for placing local initiatives and constitutional amendments on the ballot unconstitutionally burden[ed their] First Amendment rights in light of the ongoing pandemic and Ohio’s emergency orders.” Id. at *2. The district court reviewed the plaintiffs’ claims under the Anderson-Burdick framework and, for the same reasons as in Esshaki, it found that the combination of Ohio’s strict application of its ballot-access requirements and Ohio’s
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stay-at-home orders imposed a severe burden on the plaintiffs’ constitutional rights. See id. at ** 12-14.
The Sixth Circuit reversed. It held that the burden on the plaintiffs was not severe for two primary reasons. First, the Sixth Circuit found it “vitally important” that Ohio’s stay-at-home orders included significant “express exemption[s]” for First Amendment activity. Thompson, 2020 WL 2702483, at *3. More specifically, “[f]rom the first Department of Health Order issued on March 12, Ohio made clear that its stay-at-home order did not apply to ‘gatherings for the purpose of the expression of First Amendment protected speech.’ And in its April 30 order, [Ohio] declared that its stay-at-home restrictions did not apply to ‘petition or referendum circulators.’” Id. (internal citation omitted). Second, “Ohio [began] to lift their stay-at home restrictions” prior to the relevant filing deadline. Id. at *4. The plaintiffs in Thompson had a “five-week period from Ohio’s rescinding of its [stay-at-home] order until the deadline to submit an initiative petition.” Id. Based largely on these factors, the Sixth Circuit held in Thompson that the burden on plaintiffs was only “intermediate” and was not “severe.” Id. at ** 4-5.
2 In assessing the impact of the burden on Plaintiffs’ First Amendment rights, the question that the Court must now resolve is: is the burden more like the burden in Esshaki (severe) or more like Thompson (intermediate)? The burden is more like Esshaki and is therefore severe.
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Like the plaintiff in Esshaki, the Plaintiffs here faced a daunting signature requirement with a firm deadline in the midst of the COVID-19 pandemic. And from March 23, 2020, through May 7, 2020, the Plaintiffs in this action were subject to the exact same Stay-at-Home Order (and the extensions of that order) as the plaintiff in Esshaki – an order that prohibited Michiganders from leaving their homes except in very limited circumstances. Then, from May 7 through May 27, 2020 (the petition submission deadline), the Plaintiffs here were subject to three additional executive orders that continued to require Michigan residents to stay in their homes and avoid all public and private gatherings except as expressly authorized. Just as in Esshaki, the State “pulled the rug out from under the ability [of Plaintiffs] to collect signatures” and “[a]bsent relief, [Plaintiffs’] lack of a viable, alternative means to procure the signatures [they] need[] means that [they] face virtual exclusion from the ballot.” Esshaki, 2020 WL 1910154, at *6. Thus, as in Esshaki, this burden on Plaintiffs’ First Amendment rights is severe.
The burden is unlike Thompson for two primary reasons. First, and most importantly, in Thompson, “none of Ohio’s pandemic response regulations changed the status quo on the activities Plaintiffs could engage in to procure signatures for their petition.” Thompson, 2020 WL 2702483, at *3 (emphasis added). As the Sixth Circuit emphasized, and as described above, Ohio’s stay-at-home orders included two provisions that clearly allowed the plaintiffs to circulate their petitions. The first provision “made clear that its stay-at-home order did not apply to ‘gatherings for the
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purpose of the expression of First Amendment protected speech.’” Thompson, 2020 WL
2702483, at *3. The second exemption “declared that its stay-at-home restrictions did
not apply to ‘petition or referendum circulators.’” Id. These “express exemptions” were
“vitally important” to the Sixth Circuit’s determination that Ohio’s stay-at-home orders
did not impose a severe burden on the plaintiffs’ First Amendment rights. Id.
In sharp contrast here, Governor Whitmer’s initial Stay-at-Home Order and the
April 9, April 24, and May 1, 2020, extensions of that order – which covered the six-
week period from March 23, 2020, through May 7, 2020 – did not include any language
exempting any constitutionally protected activity, much less language specifically
exempting petition circulating.16 And while the May 7, May 18, and May 21 executive
16 Defendants stress that even though the Stay-at-Home Order, and the April 9, April 24, and May 1 extensions of that order, did not expressly exempt constitutionally protected activities, the orders were “interpreted” to allow for those activities. (Def.s’ Resp., ECF No. 7, PageID.114-115.) This “interpretation” was found on the State of Michigan’s website in a “frequently asked questions” document. (See id.) But as the Sixth Circuit highlighted in Thompson, while “executive officials in Michigan informally indicated [in the FAQ’s] that they would not enforce [the Stayat-Home Order and the extensions of that order] against those engaged in protected activity …. that promise is not the same thing as putting the restriction in the order itself.” Thompson, 2020 WL 2702483, at *3 (emphasis added) (distinguishing the Ohio stay-at-home orders at issue in Thompson from the Michigan stay-at-home orders at issue in Esshaki). See also Fair and Equal Michigan, Mich. Ct. Claims Case No. 20-000095, at 10-11 (June 6, 2020) (noting that the State’s frequentlyasked-questions document “did not have the force of law” and, notwithstanding that document, individuals who gathered for the purpose of expressing their political views during the pendency of the Stay-at-Home Order were “in jeopardy of arrest”). Moreover, two of Governor Whitmer’s previous orders – i.e., the executive orders issued on March 13, 2020, and March 19, 2020 (described above) – did include language purporting to exempt constitutionally protected activity, but that language was omitted from the Stay-at-Home Order and the April 9, April 24, and May 1
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orders extending the Stay-at-Home Order did include the Constitutional Exemption
Language, it is far from clear that that language permitted citizens to gather petition
signatures. The Constitutional Exemption Language provided that the restrictions
imposed by the Governor did not “abridge protections guaranteed by the state or federal
constitution under these emergency circumstances.”17 But that begs the difficult
question: how do “these emergency circumstances” impact constitutional protections?
Do citizens have a First Amendment right to gather signatures in public at the height of
a raging COVID-19 pandemic that threatens the health and, indeed, the lives of millions
of Americans?18 Notably, the exemptions from the stay-at-home order in Thompson
raised no such questions. On the contrary, the Sixth Circuit found them to be “clear.”
Thompson, 2020 WL 2702483, at *3. For these reasons, the Constitutional Exemption
Language – which was present only in the orders covering the last twenty days of the
signature-collection period – did not meaningfully lessen the burden on Plaintiffs’ First
extensions of that order. Under these circumstances, it would be unreasonable to interpret the Stay-at-Home Order, and the April 9, April 24, and May 1 extensions of that order, as purporting to exempt constitutionally protected activity. 17 See, e.g., Gov. Whitmer Executive Order 2020-77, supra (emphasis added). 18 There are no obvious answers to the questions posed above. But there is at least some authority for the proposition that liberties that citizens enjoy under the Constitution may be subject to at least some otherwise impermissible restraints during a public health crisis. See, e.g., Jacobson v. Massachusetts, 197 US 11 (1905); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 925 (6th Cir. 2020) (recognizing that during a public health emergency it may be appropriate to apply a “state-friendly standard of review” to a governmental restraint on liberty taken to combat the emergency even though “in normal times there is no way” that the restraint would “pass constitutional muster”).
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Amendment rights in the same manner or to the same extent as the exemptions in Thompson.
Second, this case is unlike Thompson because in Thompson, Ohio’s stay-at-home order was “rescinded” before the relevant filing deadline and the plaintiffs had five full weeks to finish gathering their required signatures. Id. at *4. During that five-week period, both the plaintiff signature-gatherers and the citizens the plaintiffs wished to solicit were free to leave their homes and to appear in public places. Here, in contrast, Governor Whitmer’s executive orders requiring Michiganders to stay at home remained in place up through the May 27 deadline for the submission of petitions. The lifespan of those orders supports the conclusion that, in combination with strict enforcement of the signature requirement and filing deadline, they imposed a severe burden on Plaintiffs’ First Amendment rights. See id. (explaining that the Sixth Circuit had “found a severe burden in Esshaki because Michigan’s stay-at-home order remained in effect through the deadline to submit ballot-access petitions”).19
19 The executive orders in effect for the last twenty days of the collection period – between May 7 and May 27 – contained the Constitutional Exemption Language, but for the reasons explained above, that language did not meaningfully limit the extent of the burden imposed on Plaintiffs’ First Amendment rights. But even if that language did somehow lessen the burden, that reduction lasted only twenty days and did not render non-severe the overall burden on Plaintiffs’ First Amendment rights caused by all of the Governor Whitmer’s executive orders.
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3 Defendants raise several arguments in support of their position that the burden here is not severe. None persuade the Court that the burden on Plaintiffs’ First Amendment rights is less than severe.
a Defendants first argue that the burden is not severe because notwithstanding Governor Whitmer’s Stay-at-Home order, Plaintiffs had plenty of time to collect the required number of signatures before the May 27, 2020, filing deadline. (See Def.s’ Reply Br., ECF No. 7, PageID.127-128.) Defendants say that Plaintiffs could have begun circulating their petitions on November 29, 2019, but “Plaintiffs decided late to start circulating their petitions” and did not start collecting signatures until January 16, 2020. (Id.) Defendants insist that Plaintiffs are responsible for that delay and the resulting inability to collect the required number of signatures. (See id.) The Court disagrees. Judge Berg rejected a similar argument in Esshaki, and the argument fares no better here. Plaintiffs have shown diligence collecting their signatures. Plaintiffs collected over sixty percent of the required number of signatures – an average of over 22,000 signatures per week – during a cold Michigan winter and were easily on pace to collect the required 340,047 signatures before the May 27 deadline. Indeed, as Judge Berg recognized in Esshaki, “warmer spring weather [that] would accommodate outdoor activities [would] be more conducive to large social gatherings and door-to-
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door canvassing.” Esshaki, 2020 WL 1910154, at *4. As in Esshaki, “[i]t is not enough to merely assert that [plaintiffs’] successful collection of [sixty] percent of the requisite signatures with [more than two months] left to go is somehow evidence of dilatory behavior.” Id.
b Next, Defendants assert that the burden is not severe because Plaintiffs could have collected signatures and circulated petitions in the thirteen days between Governor Whitmer’s State of Emergency executive order on March 10, 2020, and the issuance of the Stay-at-Home Order on March 23. Defendants insist that during that time, the State “by no means required or even suggested that Plaintiffs must suspend their signature collection efforts immediately or indefinitely.” (Def.s’ Resp., ECF No. 7, PageID.128129.) But that argument “both defies good sense and flies in the face of all other guidance that the State was offering to citizens at that time.” Esshaki, 2020 WL 1910154, at *5. As the Court recognized in Esshaki, at the time Governor Whitmer issued her State of Emergency executive order, the State was urging citizens to “reduce in person gatherings” and limit their interactions with “vulnerable population.” Id. “Instead of ‘doubling down’ on door-to-door signature collection efforts between March 10th and March 23rd – increasing the risk that Plaintiff[s] and [their] supporters could possibly be exposed to the COVID-19 virus by engaging in repeated close-contact with potential petition signers or unknowingly transmit[ting] it to others – prudence at
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that time counseled in favor of doing just the opposite.” Id. Plaintiffs should be
commended for putting the public health of Michiganders above their own self-interest
and desire to collect the required number of signatures, not denigrated for making that
conscientious choice. See also Fair Maps Nevada v. Cegavske, 2020 WL 2798018, at
*13 (D. Nev. May 29, 2020) (“The Court does not find the fact Plaintiffs stopped
collecting signatures in early March—after the COVID-19 outbreak started in Nevada,
but before the Stay at Home Order went into effect—weighs against finding diligence
here. Forcing circulators to go out to collect signatures during the COVID-19 pandemic
is unreasonable and unwise.”).
c
Defendants next argue that the burden placed upon Plaintiffs is not severe
because “Plaintiffs [] had the ability to continue collecting signatures by switching to
the use of regular mail.” (Def.’s Resp., ECF No. 7, PageID.130.) Defendants suggest
that Plaintiffs could have paid to mail petitions to registered voters and then included a
paid “self-addressed stamped envelope” so that voters could mail the signed petition
back to Plaintiffs. (Id.) This argument was properly rejected in Esshaki:
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
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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, 94 S.Ct. 1315 (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).
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. Media reports extensively discuss the risks of contracting COVID-19 from mail, suggesting, at least anecdotally, that the issue may be of widespread public concern or even fear. Getting voters to return signatures by mail in normal times is difficult. 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.
Esshaki, 2020 WL 1910154, at *5.
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There is evidence in this record – through the declarations of Sawari and Parker – that Plaintiffs attempted to send petitions through the mail, but due to delays at the postal service, that attempt was not successful. (See Sawari Decl. at ¶23, ECF No 2, PageID.69; Parker Decl. at ¶8, ECF No. 2, PageID.72.) The Court is not persuaded that the potential availability of an expensive – and uncertain – mailing campaign lessened the burden on Plaintiffs here.
d Finally, Defendants argue that it was the COVID-19 pandemic, not any actions taken by Governor Whitmer or the other Defendants, that caused Plaintiffs to fall short of the signature requirement by the filing deadline. While the pandemic undoubtedly did play some role in preventing Plaintiffs from gathering the required amount of signatures, the root cause of Plaintiffs’ inability to collect signatures was Governor Whitmer’s executive orders that required Michigan residents to remain in their homes for more than two months. Indeed, as Judge Berg aptly concluded in Esshaki, it was “state action” that “pulled the rug out from under the[] ability to collect signatures.” Esshaki, 2020 WL 1910154, at *6 (emphasis added). And the Sixth Circuit affirmed that determination. See Esshaki, 2020 WL 2185553, at *1. See also Fair and Equal Michigan v. Benson, Mich. Ct. Claims Case No. 20-000095, at 11 (June 6, 2020) (rejecting argument in action by different ballot-initiative petitioners challenging the
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same filing deadline and signature requirement at issue here that “it was not the state action that burdened the plaintiff’s ability to seek signatures but the pandemic itself”).
Thus, for all of the reasons stated above, the Court concludes that Michigan’s signature requirement and filing deadline for ballot initiative petitions, in combination with Governor Whitmer’s Stay-at-Home Order, severely burdened Plaintiffs’ constitutional right to the ballot.
C The next question the Court must answer is: under the current circumstances and as applied to Plaintiffs, are Michigan’s signature requirement and filing deadline for initiative petitions “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434. The Court concludes that they are not. The Court acknowledges that the signature requirement and filing deadline may serve compelling interests, including ensuring the integrity of the electoral process and ensuring that initiatives have a modicum of public support before appearing on the ballot. But as in Esshaki, the signature requirement and filing deadline are not “narrowly tailored to the context of the COVID-19 pandemic – as [they] would need to be to survive a strict scrutiny analysis.” Esshaki, 2020 WL 1910154, at *7. First, maintaining the current petition filing deadline is not essential to ensure the integrity of the election process under these circumstances. While modifying the filing deadline would reduce the time to canvass Plaintiffs’ petitions and resolve challenges, present the initiative to the Michigan Legislature, and prepare ballots for
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the November general election, as set forth in detail in the footnote below, there would
still be sufficient time to complete those important tasks even with an extension.20 The
Court is not persuaded that modifying the filing deadline would prevent the State from
completing its work before ballots need to be printed in late September. See Fair Maps
Nevada, 2020 WL 2798018, at *16 (holding that ballot-access deadline was not
narrowly tailored in context of the COVID-19 pandemic and Nevada’s stay-at-home
order and rejecting argument that extending time to collect signatures would prevent
20 Under normal circumstances, the State would have 117 days between the May 27, 2020, filing deadline for ballot initiative petitions and the September 21, 2020, deadline to complete all of its pre-election tasks and print and mail general election ballots to overseas voters. As of the date of this Opinion and Order, there are 103 days between now and September 21. Even if some of that remaining time is allocated to Plaintiffs to collect signatures, it seems that the State would have enough time to complete its tasks. In fact, it appears that each step in the process could reasonably be shortened. For instance, the Michigan Legislature ordinarily has 40 “session days” to consider a ballot proposal, but, when motivated, it has passed bills in far less time. See http://legislature.mi.gov/doc.aspx?2020-SB-0858 (tracking bill that Legislature took up and passed within 14 days during pandemic). Moreover, it seems reasonable to conclude that the Board of State Canvassers could complete its work and resolve all challenges in less than the ordinarily-allotted amount of time that is currently provided for that work. Indeed, in an ordinary election cycle, the Board must complete its work within that time even if a large number of petitions are filed. And Defendants have not identified any evidence that the Board faces a heavy docket of petitions for review this cycle. There is simply no evidence in this record that the Board could not complete its work with respect to Plaintiffs’ one initiative petition in a much shorter time period if necessary. Finally, the Board could immediately begin its review of the 215,000 signatures that SawariMedia has already collected – while SawariMedia seeks to collect the remaining 125,000 signatures – thereby reducing any possibility that it would run out of time to review signatures that SawariMedia gathers at a later date.
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defendants from “not hav[ing] enough time to properly do their job …. There does
appear to be enough time to do everything [d]efendants would normally do on an
expedited timeline”).
Next, the State may achieve its interest in ensuring that a ballot initiative has a
sufficient modicum of support without adhering to the signature threshold currently in
effect. As Judge Berg explained in Esshaki:
[E]ven 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 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 signature-gathering 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 compelling interest in enforcing the specific numerical requirements set
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forth in Section 168.544f in the context of the pandemic conditions and the upcoming August primary. Esshaki, 2020 WL 1910154, at *7 (emphasis in original). For similar reasons, the State’s compelling interest in assuring that a ballot initiative has a sufficient modicum of support could be achieved by requiring a still-substantial number of signatures that is less than the 340,047 that would be required under normal circumstances absent a global pandemic. Indeed, there is nothing inherent in the 340,047 signatures threshold that establishes that an initiative has a modicum of public support only if it has that many signatures. Nor is it obvious that an initiative that collects less than that amount, but still collects hundreds of thousands of signatures in a shorter period of time, lacks a modicum of public support. Because Defendants have not shown that their enforcement of the signature requirement and filing deadline are narrowly tailored to the present circumstances, those requirements cannot survive a strict scrutiny analysis as applied to Plaintiffs.21 See also Esshaki, 2020 WL 2185553, at *1 (affirming Judge Berg’s holding that both the signature requirement and filing deadline for candidate petitions were “not narrowly
21 In Fair and Equal Michigan, supra, the Michigan Court of Claims held that Michigan’s filing deadline and signature requirement for ballot initiatives are narrowly tailored under the present circumstances. While the Court agrees with much of the Court of Claims’ other analysis in that case (as evidenced by this Court’s repeated citation to other aspects of that court’s ruling), the Court respectfully disagrees with that court’s conclusion that the ballot-access regulations here are narrowly tailored under these circumstances.
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tailored to the present circumstances” (emphasis in original)). Plaintiffs have therefore established a likelihood of success on the merits of their constitutional claims.
D Before the Court addresses the remaining preliminary injunction factors, the Court must address one additional argument Defendants have made. Defendants argue that Plaintiffs are not entitled to relief under the doctrine of laches because Plaintiffs “unreasonably delayed raising their claims before this Court.” (Def.s’ Resp., ECF No. 7, PageID.121.) The Court disagrees. The Court acknowledges that Plaintiffs did not mail their Complaint or emergency motion to the Court until May 4, 2020, and thus, even if there was not an unanticipated delay in the action reaching this Court’s docket, that left only three weeks before the May 27, 2020, filing deadline to resolve this action. And the Court agrees that had Plaintiffs filed their action earlier, it would have left more time to fashion a potential remedy. But the Court disagrees with Defendants that this delay was “unreasonable” or is a reason to deny Plaintiffs relief. (Id., PageID.122.) Plaintiffs, who were each acting pro se at the time this action was initially filed, did not act unreasonably. They complied with Governor Whitmer’s executive orders, including the Stay-at-Home Order, even though doing so came at the cost of finishing their circulation of the petitions; they contacted the Secretary of State’s Office on multiple occasions to inquire whether the signature requirement and/or filing deadline would be changed in light of the Governor’s executive orders; and they closely
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monitored the Esshaki litigation, and not unreasonably believed that when Defendants agreed to make substantial alterations to the filing deadline and signature requirement for candidate in that case, that the Defendants would do the same for ballot initiatives. (See Sawari Decl. at ¶¶ 16-18, ECF No. 2, PageID.68.) And once it became clear that Defendants were not going to make such accommodations for ballot petitions, Plaintiffs then filed this action. Moreover, a not insubstantial part of the delay – the delay from May 4, 2020, until May 20, 2020, when the case first appeared on the Court’s docket – was due to delays in the Court’s processing of mail due to the pandemic. Had this Court been operating under normal operating conditions, the Court almost certainly would have resolved Plaintiffs’ motion before the May 27 filing deadline. The Plaintiffs did not unreasonably delay filing this action – and, at a minimum, did not delay so unreasonably as to warrant denial of relief. See also Fair and Equal Michigan, Mich. Ct. Claims Case No. 20-000095, at 7-8 (rejecting argument that claims recently brought by proponents of a different ballot initiative against the same ballot-access deadline at issue here were barred by the doctrine of laches because “the action [was] not the sort of last-minute, potentially election-delaying lawsuit that courts have declined to address” based on laches).
VI The Court now turns to the remaining preliminary injunction factors. The Court concludes that, on balance, these factors also favor preliminary injunctive relief.
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First, Plaintiffs have shown that they will suffer irreparable harm in the absence of injunctive relief. Without action from this Court, Plaintiffs’ initiative will not appear on the 2020 general election ballot, and there is no after-the-fact remedy for that exclusion. Moreover, in “[b]allot access cases such as this … irreparable harm can be presumed.” Esshaki, 2020 WL 1910154, at *8. See also Liberation Party of Ohio v. Husted, 751 F.3d 403, 412 (2014) (“[I]t is well-settled that loss of First Amendment freedoms … unquestionably constitutes irreparable injury.” (quotation omitted)).
The Court next considers whether an injunction would cause substantial harm to others and whether the public interest would be served by an injunction. As noted above, these two factors “merge when the Government is the opposing party.” Nken, 556 U.S. at 435. Defendants insist that an injunction would harm its interest in “effectuating statutes enacted by representatives of its people.” (Def.s’ Reps., ECF No. 7, PageID.138; quoting Maryland v. King, 133 S.Ct. 1, at *3 (2012) (Roberts, C.J. in chambers).) Thus, as in Esshaki, this Court must “weigh the State’s proffered harm of not being able to enforce its ballot access requirements against the harm to the Plaintiff[s] and the public harms that would result from the lack of any injunction.” Esshaki, 2020 WL 1910154, at *9. Judge Berg concluded in Esshaki that the balance “weigh[ed] in favor of an injunction,” and this Court agrees:
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. [….] The broader public interest is not served by preserving the current signature-gathering scheme
34

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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.” [Libertarian Party of Ohio v.] Blackwell, 462 F.3d [579,] 588 [6th Cir. 2006]; see also Ill. State Bd. of Elections [v. Socialist Workers Party], 440 U.S. [ 184, 99 S.Ct. 983 (“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 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.
Esshaki, 2020 WL 1910154, at *9. Just as in Esshaki, “[t]he broader public interest
[would] not [be] served by preserving the current signature-gathering scheme” which
would have forced “supporters [of ballot initiatives] to risk their health and criminal
penalties to gather signatures.” Id. Moreover, absent relief, Michigan voters would
“lose the ability” to vote for a ballot initiative that, “absent the pandemic, would have
[likely] been included on the ballot.” Id. For all of these reasons, the harm to the public
and the Plaintiffs outweighs the State’s legitimate interest in enforcing its election laws
in the manner and timeframe established prior to the COVID-19 pandemic. These
factors therefore also favor an injunction.
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VII Finally, the Court must consider whether to require Plaintiffs to post a bond. Under Federal Rule of Civil Procedure 65(c), a court may issue a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined.” However, notwithstanding that provision, “the rule in [the Sixth] [C]ircuit has long been that the district court possesses discretion over whether to require the posting of security.” Motan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995). See also Concerned Pastors for Social Action v. Khouri, 220 F. Supp. 3d 823, 829 (E.D. Mich. 2016) (same). And courts have “significant discretion to waive the bond requirement in light of the public interest.” Khouri, 220 F. Supp. 3d at 829. The Defendants have not asked that Plaintiffs be required to post a bond, and the Court concludes that given the substantial public interests at issue here, a bond would not be appropriate. Thus, Plaintiffs are not required to post a bond.
VIII For all of the reasons stated above, the strict application of Michigan’s signature requirement and filing deadline for ballot initiatives is unconstitutional as applied here, and Plaintiffs’ motion for a preliminary injunction (ECF No. 2) is therefore GRANTED. Defendants are enjoined from excluding Plaintiffs’ ballot initiative from the 2020 general election ballot on the basis that Plaintiffs did not collect 340,047 valid signatures by the May 27, 2020, filing deadline.
36

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The Court will not “dictate to [Defendants] preciously how they should conduct

their elections.” Esshaki, 2020 WL 2185553, at *2. Instead, as in Esshaki, the Court

“instruct[s Defendants] to select [their] own adjustments so as to reduce the burden on

ballot access, narrow the restrictions to align with [their] interest, and thereby render

the application of the [signature requirement and filing deadline] constitutional under

the circumstances.”22 Id.

IT IS SO ORDERED.

Dated: June 11, 2020

s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on June 11, 2020, by electronic means and/or ordinary mail.
s/ Holly A. Monda Case Manager (810) 341-9764

22 To be crystal clear: the Court is not compelling the Defendants to take any particular action in order to remedy the constitutional violation found by the Court. If, for instance, Defendants believe that they could not alter the requirement under the Michigan Constitution concerning the minimum number of signatures in support of a ballot initiative, they could extend the statutory deadline for the filing of the petitions containing those signatures. Once again, how to remedy the constitutional violation is up to the Defendants in the first instance.
37

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.358 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAHL PARKER, JUDY KELLOGG and PAUL ELY,
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.

No. 20-11246
HON. MATTHEW F. LEITMAN
MAGISTRATE MICHAEL J. HLUCHANIUK
DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING
EMERGENCY APPEAL
RESPONSE REQUESTED AS SOON AS POSSIBLE BUT NO LATER THAN 5:00 P.M. ON JUNE 24, 2020 GIVEN THE NEED TO
EXPEDITE DEFENDANTS’ APPEAL

Saura J. Sahu (P69627) Attorney for SawariMedia LLC 230 Nicekls Arcade Ann Arbor, Michigan 48104 734.780.7595 sahu@clancyadvisers.com
Amani Sawari, In Pro Per P.O. Box 2278 Detroit, Michigan, 48202 248.795.0886 amanisawari@gmail.com
Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants PO Box 30736

Deborah Parker, In Pro Per 21908 Gaukler Street St. Clair Shores, Michigan 48080 313.550.2081 alinosi@yahoo.com
Paul Ely, In Pro Per 12646 North Red Bud Buchanan, Michigan 49107 269.635.1611 tlc.greenyard@yahoo.com
Judy Kellogg, In Pro Per 2450 Krouse Road, Lot #337 Owosso, Michigan 48867 989.277.3228 judykellogg95@gmail.com

Case 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.359 Page 2 of 30
Lansing, Michigan 48909 517.335.7659 meingasth@michigan.gov grille@michigan.gov
DEFENDANTS’ EMERGENCY MOTION 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 a stay pending appeal under Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a)(1)(C) of the orders granting a preliminary injunction and rejecting Defendants’ Second Proposed Remedy. In support of their motion, the State Defendants state as follows:
1. Plaintiffs asked this Court to enjoin the signature requirement and filing deadline for initiative petitions under Mich. Const. 1963, Art. 2, §9 and Mich. Comp. Laws §168.471. They argued the COVID-19 pandemic and the Governor’s Stay-at-Home Orders made it impossible for them to meet the signature requirement by the May 27, 2020 filing deadline, and as a remedy the Court should enjoin the State Defendants from enforcing these constitutional and statutory requirements.
2. On June 11, 2020, the Court granted Plaintiffs’ motion for a preliminary injunction, and directed the State Defendants to propose a remedy for

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the purported violations of Plaintiffs’ rights under the First and Fourteenth Amendments.
3. The State Defendants request this Court stay its order enjoining the State Defendants from enforcing the signature and filing requirements pending an emergency appeal by Defendants to the Sixth Circuit of this Court’s injunction and rejection of the State Defendants’ Second Proposed Remedy. The State Defendants are likely to succeed on their appeal of whether their proposed remedy adequately relieved any burden on the Plaintiffs, and the other stay factors weigh in favor of granting Defendants a stay.
4. Time is of the essence because if Defendants’ proposed remedy is sufficient, the Plaintiffs’ petition will need to be filed by July 6, 2020 and the petitions must be canvassed—and any challenges to signatures resolved—no later than July 24, 2020. Defendants thus ask this Court to grant their motion on an expedited basis.
5. Pursuant to L.R. 7.1, on June 23, 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

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Director of Elections Jonathan Brater respectfully request that this Honorable

Court grant their motion and stay its order enjoining the Defendants from

enforcing the constitutional and statutory requirements for statewide initiative

petitions pending Defendants’ appeal to the Sixth Circuit.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: June 23, 2020

s/Erik A. Grill 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: grille@michigan.gov P64713

CERTIFICATE OF SERVICE
I hereby certify that on June 23, 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/Erik A. Grill Erik A. Grill (P64713) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713

Case 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.362 Page 5 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAHL PARKER, JUDY KELLOGG and PAUL ELY,
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,

No. 20-11246
HON. MATTHEW F. LEITMAN
MAGISTRATE MICHAEL J. HLUCHANIUK
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION FOR STAY PENDING
EMERGENCY APPEAL

Defendants.

RESPONSE REQUESTED AS SOON AS POSSIBLE BUT NO LATER THAN 5:00 P.M. ON JUNE 24, 2020 GIVEN THE NEED TO
EXPEDITE DEFENDANTS’ APPEAL

Saura J. Sahu (P69627) Attorney for SawariMedia LLC 230 Nicekls Arcade Ann Arbor, Michigan 48104 734.780.7595 sahu@clancyadvisers.com
Amani Sawari, In Pro Per P.O. Box 2278 Detroit, Michigan, 48202 248.795.0886 amanisawari@gmail.com
Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants

Deborah Parker, In Pro Per 21908 Gaukler Street St. Clair Shores, Michigan 48080 313.550.2081 alinosi@yahoo.com
Paul Ely, In Pro Per 12646 North Red Bud Buchanan, Michigan 49107 269.635.1611 tlc.greenyard@yahoo.com
Judy Kellogg, In Pro Per 2450 Krouse Road, Lot #337 Owosso, Michigan 48867 989.277.3228 judykellogg95@gmail.com

Case 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.363 Page 6 of 30
PO Box 30736 Lansing, Michigan 48909 517.335.7659 meingasth@michigan.gov grille@michigan.gov
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION FOR A STAY PENDING EMERGENCY APPEAL

Dated: June 23, 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 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.364 Page 7 of 30
TABLE OF CONTENTS Page
Certificate of Service ............................................................................................. 4 Table of Contents.................................................................................................... i Index of Authorities ............................................................................................... ii Concise Statement of Issue Presented ................................................................... iv Controlling or Most Appropriate Authority............................................................ v Introduction ........................................................................................................... 1 Statement of Facts.................................................................................................. 2
The Governor’s declaration of emergency and other executive orders. ................................................................................................ 2 General requirements for initiative petitions in Michigan .................. 6 Requirements and timeline for initiatives for the November 2020 general election ......................................................................... 7 Procedural History ............................................................................. 9 Argument ..............................................................................................................10 The Court’s preliminary injunction should be stayed pending the State Defendants’ emergency appeal. ..................................................................10 The State Defendants are likely to prevail on the merits of their appeal regarding the injunction or, alternatively, their proposed remedy. .............................................................................................11 The State Defendants will be irreparably harmed absent a stay and the public interest weighs in favor of a stay................................16 Conclusion and Relief Requested..........................................................................18 Certificate of Service ............................................................................................19
i

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INDEX OF AUTHORITIES Page
Cases American Party of Texas v. White, 415 U.S. 767 (1974) .......................................15 Bullock v. Carter, 405 U.S. 134 (1972).................................................................14 Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir.
2006) .................................................................................................................11 Esshaki, et al. v. Whitmer, et al., 2020 U.S. App. LEXIS 14376 ...........................12 Jenness v. Forton, 403 U.S. 431 (1971) ................................................................14 Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009)......................................................11 Maryland v. King, 133 S. Ct. 1 (2012) ..................................................................16 Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998) ..................12 Mich. Comp. Laws §168.472a ..............................................................................15 Michigan Coal of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d
150 (6th Cir. 1991) ............................................................................................18 Munro v. Socialist Workers Party, 479 U.S. 189 (1986) .......................................15 Nader v. Blackwell, 230 F.3d 833 (6th Cir. 2000) .................................................17 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..........16 Nken v. Holder, 556 U.S. 418 (2009) ....................................................................16 Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566
(6th Cir. 2002) ...................................................................................................11 Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) ..............................................12 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) .............................15 U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008) .................12
ii

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Woodland v. Mich. Citizens Lobby, 423 Mich. 188 (1985)..............................13, 14 Statutes Mich. Comp. Laws § 168.1.................................................................................... 6 Mich. Comp. Laws § 168.472 ................................................................................ 7 Mich. Comp. Laws § 168.476 .............................................................................7, 8 Mich. Comp. Laws § 168.477 .............................................................................7, 9 Mich. Comp. Laws § 168.477(1) ........................................................................... 7 Mich. Comp. Laws § 168.482 ................................................................................ 6 Mich. Comp. Laws § 800.33 .................................................................................. 1 Constitutional Provisions Mich. Const. 1963, art. 2, § 9..............................................................................6, 7
iii

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CONCISE STATEMENT OF ISSUE PRESENTED 1. Whether the portion of the Court’s preliminary injunction ordering
that Defendants cannot enforce the constitutional and statutory requirements for statewide initiative petitions as to Plaintiffs should be stayed pending the State Defendants’ emergency appeal?
iv

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Mich. Comp. Laws § 168.471 Mich. Const. 1963, art 2, §9 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 Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020).
v

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INTRODUCTION Plaintiffs are proponents of an initiative petition to amend Michigan’s truthin-sentencing law, 1893 P.A. 118, Mich. Comp. Laws § 800.33.1 Under the Michigan Constitution, they are required to file at least 340,047 valid signatures by the statutory deadline of May 27, 2020 to potentially gain access to the November 3, 2020 general election ballot. Plaintiffs asked this Court to enjoin the signature requirement and filing deadline for legislative initiative petitions. Plaintiffs argued the COVID-19 pandemic and the Governor’s executive orders limiting social interactions made it impossible for them to meet these requirements. But Plaintiffs failed to demonstrate a strong likelihood of success on the merits of their First and Fourteenth Amendment constitutional claims, and their similar failure to sufficiently demonstrate irreparable harm should have barred their request for injunctive relief. Nevertheless, on June 18, 2020, the State Defendants proposed extending the filing deadline from May 27, 2020 to July 6, 2020—an extension of 40 days that includes a major holiday. While the State Defendants do not believe that there was any burden imposed upon the Plaintiffs, let alone a severe burden, that supported a preliminary injunction, the proposed extension was sufficient to remediate any claimed harm.
1 See website for Michigan Prisoner Rehabilitation Credit Act, available at https://www.mprca.info/.
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The State Defendants request this Court stay its preliminary injunction and rejection of the State Defendants’ proposed remedy pending an emergency appeal by Defendants to the Sixth Circuit. The State Defendants are likely to succeed on their appeal of this Court’s rejection of their remedy, 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, would result in Plaintiffs’ petition being due to be filed on July 6, after which the State Defendants would need to canvass the petition signatures—and resolve any challenges to those signatures—by July 24, 2020 in order for the proposal to be presented to the Legislature in time for them to consider it for the constitutionally required 40 session days before the ballots must be certified and printed. Defendants thus ask this Court to grant their motion on an expedited basis.
STATEMENT OF FACTS The Governor’s declaration of emergency and other executive orders. 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
2 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html.
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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 But the order stated that its “prohibition [did] not abridge protections guaranteed by the state or federal constitution under these emergency circumstances.”4
Three days later, 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.5 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.6 That order included the same language that its “prohibition [did] not abridge protections guaranteed by the state or federal constitution under these emergency circumstances.”7
3 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. 4 (Id.) 5 EO No. 2020-9, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. Replaced by EO 2020-20. 6 EO No. 2020-11, available at, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. 7 (Id.)
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Subsequently, on March 23, 2020, again in response to the spreading COVID-19 pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21 (the “Stay-Home Order”), 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.8 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.9 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, 2020.10 She then extended it through May 15, 2020, pursuant to Executive Order 2020-59.11 These orders did not contain the “does not abridge” language. But the orders were interpreted to permit outdoor “expressive activities protected by the First Amendment,” so long as “social distancing measures . . . including remaining
8 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. 9 (Id.) 10 EO No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf. See also EO No. 2020-43, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-525927--,00.html. 11 EO No. 2020-59, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-526894--,00.html.
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at least six feet from people from outside the person’s household” were followed.12
Since then the Governor has additionally extended the Stay-Home Order, but has
lessened the restrictions each time.13 On June 1, 2020, Governor Whitmer issued
EO 2020-110, which reduced restrictions and permitted indoor gatherings of up to
10 people, and outdoor events of up to 100 people.14 Similarly, the FAQ for this
EO also provides that activities protected by the First Amendment are not
prohibited.15 On June 5, 2020, EO 2020-115 further reduced restrictions and
permitted indoor gatherings of up to 50 people and outdoor gatherings of up to 250
people.16 Further, there were multiple, nationally-publicized protests in Michigan
12 See EO No. 2020-21, FAQ’s, https://www.michigan.gov/coronavirus/0,9753,7406-98178_98455-522631--,00.html; EO No. 2020-42, FAQ’s https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-525278-,00.html; EO No. 2020-59, FAQs, https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-527027-,00.html. 13 See EO Nos. 2020-70, 2020-77, 2020-92, 2020-96, and 2020-100 available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html. These orders were likewise interpreted to permit outdoor, expressive First Amendment activities. See FAQ’s for EOs 70, 77, 92 and 96, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-521682-,00.html. 14 See EO No. 2020-110 available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-530620--,00.html. 15 See FAQ’s for EO No. 2020-110, available at https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-530654-,00.html. 16 See EO No. 2020-115 available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-531127--,00.html.
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that occurred before Plaintiffs filed this action and which effectively demonstrated that First Amendment activities were not precluded by the EO’s.17 Plaintiffs have not alleged or demonstrated with affirmative evidence that any of the Defendants or their agents ever told them that they were required to cease their petition circulation.
General requirements for initiative petitions in Michigan Article 2, § 9 of the Michigan Constitution empowers the people to propose laws or to enact or reject laws, called the initiative. Mich. Const. 1963, art. 2, § 9. With respect to initiatives, § 9 provides in relevant part:
The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative . . . To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight percent for initiative . . . of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. [Mich. Const. 1963, art. 2, § 9.] The Michigan Legislature implemented article 2, § 9 with respect to initiatives in various sections of the Michigan Election Law, Mich. Comp. Laws § 168.1 et seq. Under the Constitution and the Election Law, in order for the people to place an initiative on the general election ballot, the people must: (1) prepare a petition that meets the form requirements of Mich. Comp. Laws § 168.482; (2) gather the required number of valid signatures under article 2, § 9; and (3) timely
17 See e.g. https://abcnews.go.com/US/convoy-protesting-stay-home-orderstargets-michigans-capital/story?id=70138816
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file the petitions with the Secretary of State under Mich. Comp. Laws § 168.472. After filing, Michigan’s Board of State Canvassers must canvass the petition to determine whether there are sufficient valid signatures under Mich. Comp. Laws § 168.476. Once the review is complete, the Board of State Canvassers must make an official declaration of the sufficiency or insufficiency of the initiative petition at least 100 days before the election at which the proposal is to be submitted. Mich. Comp. Laws § 168.477(1).
If the initiative petition is certified as sufficient, the Secretary of State must present it to the Legislature for enactment or rejection within 40 sessions days under article 2, § 9. If the Legislature rejects the initiative, it must be submitted to the people for a vote at the next general election. Mich. Const. 1963, art. 2, § 9.
Requirements and timeline for initiatives for the November 2020 general election For this election cycle, proponents of a legislative initiative, like Plaintiffs, must file a petition containing at least 340,047 valid signatures of registered voters with the Secretary of State by May 27, 2020. Mich. Const. 1963, art. 2, § 9; Mich. Comp. Laws § 168.477.18 As explained by Defendant Director of Elections Jonathan Brater in his declaration, after a petition is filed it undergoes a rigorous
18 See also Sponsoring a Statewide Initiative, Referendum or Constitutional Amendment Petition, p 5, available at www.michigan.gov/documents/sos/ Initiative_and_Referendum_Petition_Instructions_2019-20_061119_658168_7.
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and time-sensitive canvassing process that includes a face review of every petition

sheet, a random signature sampling process, and a signature challenge period. (R.

7-2, Def’s Resp. to TRO, Ex A, Brater Decl, PgID# 147-155, ¶¶ 7-8). The

canvassing process ends with the State Board of Canvassers, which must meet to

declare the sufficiency or insufficiency of an initiative petition by July 24, 2020 for

this cycle. (Id., ¶ 6). If a petition is declared sufficient, the Secretary of State will

transmit the proposal to the Legislature for its 40-session day review. (Id., ¶¶10-

11). By September 4, 2020, the Board must assign a proposal number to any

initiative that is not passed by the Legislature and approve ballot wording. (Id., ¶

11). The Secretary of State will immediately thereafter certify the ballot to the

county clerks, which clerks must then prepare to print ballots. (Id., ¶ 11). As

explained in Director Brater’s declaration, ballot printing is, or at least can be, a

complex process involving significant levels of preparation and review. (Id., ¶ 13-

17). But ultimately, ballots must be printed and available for delivery to military

and overseas voters beginning September 21, 2020. (Id., ¶19). The following

table shows the timeline of pertinent dates leading up to the November 2020

general election:

Date and Time

Action

By 5:00 pm on May Petitions for legislative initiative filed

27, 2020

with Secretary of State (340,047 valid

signatures required)

May 27, 2020 to July Canvass of initiative petitions begins,

23, 2020

including random sampling process;

8

Statute Mich. Comp. Laws § 168.471 Art 2, § 9 Mich. Comp. Laws § 168.476

Case 4:20-cv-11246-MFL-MJH ECF No. 30 filed 06/23/20 PageID.377 Page 20 of 30

July 24, 2020 September 4, 2020
September 5, 2020 September 19, 2020 September 21, 2020
November 3, 2020

signature challenges permitted during this time period. (Canvassing may take up to 60 days) Board of State Canvassers to declare sufficiency or insufficiency of initiative petitions Board of State Canvassers must assign numerical designation and approve ballot wording for all statewide proposals, and Secretary of State must certify the ballot to county clerks County clerks begin ballot proofing and printing Deadline for county boards of election commissioners to deliver AV ballots to county clerks for November Election Deadline for county clerks to deliver AV ballots to local clerks; deadline for AV ballots to be available for delivery to military and overseas voters
General Election

Mich. Comp. Laws § 168.477
Mich. Comp. Laws §§ 168.474a, 168.480, 168.648
Mich. Comp. Laws § 168.689 Mich. Comp. Laws § 168.713
Mich. Comp. Laws §§ 168.759a, 168.714 Art. 2, § 4 52 U.S.C. § 20302

Procedural History Plaintiffs filed the complaint for declaratory and injunctive relief, along with a motion for a temporary restraining order, on May 4, 2020. Defendants were not served with the complaint or motion. The undersigned counsel received an e-mail from the Court on May 21, 2020, alerting them to the existence of the motion and requesting they join a scheduling conference by telephone that afternoon. During that telephone conference, the Court indicated that—due to some issue involving the mail—the complaint and motion had just arrived to the Court that day.
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Defendants agreed to submit a response to the motion by Wednesday, May 27, 2020. On June 1, 2020 Plaintiff SawariMedia retained counsel and filed a reply, raising new claims and arguments for the first time. Defendants requested leave to file a surreply, which was granted. Defendants filed their sur-reply on June 4, 2020. The Court held a video-conference hearing on the motion for preliminary injunction on June 5, 2020. On June 11, 2020, the Court issued its opinion granting Plaintiffs’ motion for preliminary injunction.
After initially proposing relief that mirrored relief provided in a similar case in Michigan’s Court of Claims, (Doc. 18), the State Defendants proposed on June 18, 2020 a second remedy that would modify the filing deadline for initiative petitions to July 6, 2020. (Doc. 23). This was an extension of 40 days after the original deadline, and would give Plaintiffs the ability to gather signatures over the July 4th holiday weekend. In addition, the State Defendants offered the alternative of tolling the expiration of any signatures gathered if Plaintiffs chose to pursue the 2022 ballot. On June 22, 2020, the Court ruled that the proposed remedy was inadequate to remediate the burden on Plaintiffs’ access to the 2020 general election ballot. (Doc. 25.)
ARGUMENT The Court’s preliminary injunction should be stayed pending the State Defendants’ emergency appeal.
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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 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 appeal regarding the injunction or, alternatively, their proposed remedy. The Court concluded that Plaintiffs demonstrated a substantial likelihood of success on the merits of their claim that Mich. Const. 1963, art 2, §9, Mich. Comp. Laws §168.471, and the Governor’s Stay-at-Home Orders, as applied in combination to Plaintiffs, unconstitutionally burdened Plaintiffs First and Fourteenth Amendment associational rights. (R. 17, Injunction Order, Page ID ##
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220-256). Following the Sixth Circuit’s directives in Esshaki, et al. v. Whitmer, et al., 2020 U.S. App. LEXIS 14376 and Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020), the Court did not replace the enjoined requirements and instead directed the State Defendants to propose a remedy that relieved the burden on Plaintiffs.
The State Defendants are appealing the Court’s decision to enjoin the enforcement of constitutional and statutory requirements for initiative petitions, for all of the reasons already stated in their opposition to the preliminary injunction motion. But, further, the State Defendants are appealing the Court’s conclusion that there remained a severe burden on Plaintiffs after the State Defendants proposed extending the filing deadline to July 6, 2020.
In evaluating the State Defendants’ 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 it went beyond what was necessary to
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alleviate Plaintiffs’ burden as alleged under the circumstances. In rejecting the State Defendants’ proposed remedy, the Court stated that the extension it provided was insufficient, and an appropriate remedy would need to include a later deadline, a reduction of signatures, or some combination of both. Because the State Defendants have already offered the latest possible deadline that complies with their obligations to have ballots in voters hands no later than September 21, the Court’s rejection essentially requires Defendants to agree to reduce the number of signatures required. While the Court concluded that Michigan’s constitutional signature requirement and statutory filing deadline contributed to the severe burden imposed on Plaintiffs, that conclusion does not necessarily compel a reduction in the constitutionally-required number of signatures. In fact, the very signature requirement in question was hotly debated during the state’s constitutional convention, and reductions were directly rejected by the delegates for reasons that deserve repetition here:
It's tough. We want to make it tough. It should not be easy. The people should not be writing the laws. That's what we have a senate and house of representatives for. Woodland v. Mich. Citizens Lobby, 423 Mich. 188, 217 (1985)(quoting 2 Official Record, Constitutional Convention 1961, p 2394.) As the Michigan Supreme Court recognized in Woodland, the initiative process was a “gun behind the door” operating as a threat to the state legislature, and was intended as a last resort for the
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people when the legislature failed to act on issues that “so inflame the citizenry on a grass-roots level” that reach disinterested or unknowing voters. Woodland, 423 Mich. at 217-218. If Plaintiffs cannot—even with a 40-day extension that includes a major holiday weekend—collect a sufficient number of signatures, then perhaps the issue is simply not important enough to the electorate to warrant the strong medicine of overriding the state legislature and presenting the question directly to the voters.
Regardless, a reduction in signatures for initiative petitions would be an unprecedented disruption to the established and traditional process for an initiative proposal to gain ballot access in Michigan. Further, it would directly contradict the expressed view of delegates who drafted the initiative provision of Michigan’s Constitution, and the will of the people who adopted it.
The State has a compelling interest in requiring proponents of initiatives to demonstrate the required modicum of support as established by the Legislature or its state constitution. See, e.g., 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
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(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 State also has an interest in upholding the terms of its own Constitution.
The State Defendants proposed to the Court the less disruptive option of extending the filing deadline by a significant length—40 days. The extension of the filing deadline to July 6, along with the alternative of tolling the expiration of signatures under Mich. Comp. Laws §168.472a, would have been sufficient to alleviate the alleged burden to Plaintiffs.
While Plaintiffs say that the extended deadline was less than the 61 days they “lost,” that argument misses the mark. First, Defendants do not agree that Plaintiffs were prevented from circulating their petition at all during even the most restrictive Executive Orders. Plaintiffs could—and should have—been continuing to gather signatures throughout the months of March, April, and May. Second, the time period is in line with the Plaintiffs’ allegations about their campaign. Plaintiffs argued in their motion for preliminary injunction that they gathered signatures between January 16, 2020 and March 15, 2020 (when they began to halt their gathering effort following President Trump’s initiative to slow the spread of COVID-19). In those 59 days, they claim to have gathered 215,000 signatures. That is a rate of 3644 signatures per day. So, it is not unreasonable to expect that they could gather more than the remaining 125,047 signatures in another 40 days—
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especially where the weather is warmer, there a fewer restrictions on gatherings, and more people are likely to be outside than they would have been in January, February, March, April, or even May.
It was thus an abuse of discretion for the Court to reject the Defendants’ Second Proposed Remedy.
The State Defendants will be irreparably harmed absent a stay and the public interest weighs in favor of a stay. 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 Plaintiffs without an injunction, the issuance of an injunction will irreparably harm the State and its citizens. The Supreme Court has recognized that “anytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 133 S. Ct. 1, *3 (2012) (C.J. Roberts in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). The election law enjoined by the Court, Mich. Comp. Laws § 168.471, was duly enacted by the Michigan Legislature, and Mich. Const. 1963, art 2, §9 was adopted as part of the Michigan Constitution. Moreover, the people have an interest in the fair and orderly holding of elections and ensuring that initiative petitions meet the threshold for public support that the people expressly required in their Constitution. These factors thus weigh in favor
16

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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.”).
Conversely, the Plaintiffs will not be harmed by a stay of the injunction. The statutory deadline has already passed. So, there are two outcomes of the appeal. Either the Sixth Circuit agrees that the injunction was unwarranted or the State Defendants’ remedy was sufficient, or the Sixth Circuit upholds the injunction. If the Sixth Circuit finds that injunctive relief was not warranted, then Plaintiffs will be not harmed by staying an injunction to which they are not entitled. Or, if Sixth Circuit decides that the Defendants’ proposed relief was sufficient, then the relief offered by the Defendants will be available to Plaintiffs without interference by the stay. On the other hand, if the Sixth Circuit decides that an injunction was appropriate and the proposed relief was insufficient, then the Defendants will likely be required to propose a different remedy that allows Plaintiffs another opportunity to access the November 2020 ballot. In any of these outcomes, Plaintiffs will not be inconvenienced by a temporary stay pending the determination of the appeal.
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
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Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.

1991). Given that Plaintiffs are unlikely to succeed on the merits on appeal, see

the arguments presented in II. A., Defendants have a lower burden concerning their

irreparable harm.

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 and stay its order

enjoining the Defendants from enforcing the constitutional and statutory

requirements for statewide initiative petitions as to Plaintiffs pending Defendants’

appeal to the Sixth Circuit.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: June 23, 2020

s/Erik A. Grill 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: grille@michigan.gov P64713

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CERTIFICATE OF SERVICE I hereby certify that on June 23, 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, as well as via electronic mail to the following parties appearing in pro per: Judy Kellogg, In Pro Per, judykellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.greenyard@yahoo.com
s/Erik A. Grill Erik A. Grill (P64713) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713
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 Case 4:20-cv-11246-MFL-MJH ECF No. 31 filed 06/24/20 PageID.388 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAH PARKER, JUDY KELLOGG and PAUL ELY,
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.

Case No. 4:20-CV-11246 Hon. Matthew F. Leitman Mag. J. Michael J. Hluchaniuk

PLAINTIFF SAWARIMEDIA LLC’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION FOR STAY PENDING EMERGENCY APPEAL

Plaintiff SawariMedia, LLC opposes Defendants’ motion for a stay of the injunction here because there is no legitimate ground for the stay. Plaintiff incorporates and relies upon its opening brief, its reply brief, its objections to the Second Proposed Remedy and its Notice of intent to rely on certain authority.
As to the likelihood of success on the merits, even if de novo review were appropriate rather than the abuse-of-discretion standard that applies, the State would not be likely to succeed because the established law is squarely against it. Notably,
1

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the State continues to willfully ignore its burden of proof as reflected in Gonzales v.

O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S. Ct. 1211,

1219 (2006), as well as the Aschroft and Playboy lines of cases, which require the

State at this stage to produce evidence and to demonstrate – as applied here – both

that Plaintiff’s proposed remedy is not the least restrictive practicable means to vin-

dicate appropriate interests and that the State’s proposed remedy is instead the least

restrictive means to accomplish those ends. The State’s parroting of an interest in

vindicating unconstitutional State-law provisions is patently insufficient.

The same irreparable harm to Plaintiffs continues to occur with every passing

day that an injunction might be stayed.

The State’s interest in removing the injunction, so that it could continue to

impose unconstitutional requirements, is not legitimate in the absence of a compliant

alternative.

The public’s interests – usually melding with the State, but diverging here

because of the State’s approach – also include the interests in exercising the citizens’

right to direct democracy and to vote for (or against) the initiative on their own ac-

cord.

Respectfully Submitted,

June 24, 2020

By: /s/ Saura J. Sahu Saura J. Sahu (P69627)

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PROOF OF SERVICE

I hereby certify that on June 24, 2020, I caused the aforementioned and at-

tached document to be electronically filed through the Court’s electronic CM/ECF

filing system, which will serve a copy and notice of filing on every attorney of record

for Defendants. I also caused to be served via email the following parties:

Judy Kellogg, In Pro Per, judy kellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.rgeenyard@yahoo.com

I declare under the penalty of perjury that the above statements are true to the best

of my knowledge, information, and belief.

Respectfully Submitted,

June 24, 2020

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

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 Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.391 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAWARIMEDIA LLC, et al.,

Plaintiffs, v.

Case No. 20-cv-11246 Hon. Matthew F. Leitman

GRETCHEN WHITMER, et al.,

Defendants. __________________________________________________________________/

ORDER DENYING DEFENDANTS’ EMERGENCY MOTION FOR A STAY PENDING EMERGENCY APPEAL (ECF No. 30)

Plaintiff SawariMedia LLC is a civil-rights organization that seeks to place an

initiative on Michigan’s 2020 general election ballot. On June 11, 2020, this Court

enjoined Defendants from keeping SawariMedia’s proposed initiative off the ballot

based on SawariMedia’s inability to collect the required 340,047 signatures by the

May 27, 2020, filing deadline. (See Op. and Order, ECF No. 17.) Defendants have

now moved for an emergency stay of the Court’s preliminary injunction while they

pursue an emergency appeal. (See Mot., ECF No. 30.) Defendants filed their

emergency motion for a stay on the evening of June 23, 2020, and they asked the

Court to rule on that motion by no later than 5:00 p.m. the next day, June 24, 2020.

(See id., PageID.358.) Given the press of time, the Court’s discussion and analysis

below is necessarily truncated. The Court included a full recitation and analysis of

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the background facts and controlling law in its Opinion and Order granting injunctive relief. (See Op. and Order, ECF No. 17, PageID.222-231.) The Court encourages the reader to begin with that ruling.
For the reasons that follow, Defendants’ motion for an emergency stay is DENIED.
I A SawariMedia “is a coalition of like-minded individuals who work together to educate and promote their political views in the public arena.” (Decl. of Amani Sawari, owner and manager of SawariMedia, at ¶2, ECF No. 2, PageID.66.) In the “summer of 2019,” SawariMedia media began planning to place an initiative on Michigan’s 2020 general election ballot. (Id. at ¶4, PageID.66.) That initiative seeks “to allow all [Michigan] prisoners regardless of the date on which they were sentenced, the right to earn time off their sentences by incentivizing good behavior, academic and professional achievement.” See http://mprca.info/petition. Under Michigan law, in order to place the initiative on the 2020 general election ballot, SawariMedia needed to submit “petitions signed by a number of registered electors, not less than eight percent … of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” Mich. Const., 1963, art. 2, § 9. A total of 4,250,585 votes were cast
2

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in Michigan’s last general election for Governor.1 Thus, SawariMedia needed to collect 340,047 valid signatures in order to secure a spot for its initiative proposal on Michigan’s 2020 general election ballot. Under Michigan law, the petitions containing those signatures had to be filed with the Michigan Secretary of State by not later than May 27, 2020. See Mich. Comp. Laws § 168.471 (requiring the filing of initiative petitions with the Secretary of State “at least 160 days before the election at which the proposed law would appear on the ballot”).
Once signed petitions are filed with the Secretary of State, the Board of State Canvassers “shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered [voters].” Mich. Comp. Laws § 168.476. The canvassing process also allows interested parties to challenge a determination made about a signature’s validity. The Board of State Canvassers must complete their canvass and “shall make an official declaration of the sufficiency or insufficiency of an initiative petition no later than 100 days before the election at which the proposal is to be submitted.” Mich. Comp. Laws § 168.477(1). If the Board of State Canvassers declares that an initiative petition has sufficient signatures, the Michigan Legislature then has “40 session days” to either “enact[]” the proposal “without change or amendment” or reject the proposal. Mich. Const., 1963, art. 2, § 9. “If the Legislature does not enact the proposal within 40 session
1 See https://mielections.us/election/results/2018GEN_CENR.html. 3

Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.394 Page 4 of 18
days, the Board of State Canvassers must prepare the proposal for the ballot.” (Declaration of Defendant Jonathan Brater, Michigan Director of Elections, at ¶11, ECF No. 7-2, PageID.151-152, citing Mich. Comp. Laws §§ 168.474a, 168.480.)
By early March, SawariMedia appeared to be well on its way to collecting a sufficient number of signatures to place its initiative on the November 2020 general election ballot. At that time, it had “collected approximately two-hundred fifteen thousand (215,000) valid signatures” in support of the initiative – an average of over 22,000 per week. (Sawari Decl. at ¶¶ 3, 7, ECF No. 2, PageID.66-67.) But then, on March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of the COVID-19 coronavirus in Michigan.2 Governor Whitmer declared a “State of Emergency” that same day. The State of Emergency executive order recognized that COVID-19 “can easily spread from person to person” and could “result in serious illness or death.”3 Three days later, on March 13, 2020, Governor Whitmer closed Michigan’s schools and prohibited
2 See Gov. Whitmer Executive Order 2020-04, Declaration of State of Emergency, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html. 3 Id.
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Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.395 Page 5 of 18
gatherings of more than 250 people.4 On March 16, 2020, Governor Whitmer closed
various places of public accommodation, such as restaurants, bars, and gyms.5
On March 23, 2020, Governor Whitmer issued what has become known as
the “Stay-at-Home Order.”6 The Stay-at-Home Order, subject to very limited
exceptions, required “all individuals currently living within the State of Michigan
… to stay at home or at their place of residence. Subject to the same exceptions, all
public and private gatherings of any number of people occurring among persons not
part of a single household [were also] prohibited.”7 The Stay-at-Home Order also
provided that “[c]onsistent with [Mich. Comp. Laws §] 10.33 and [Mich. Comp.
Laws §] 30.405(3), a willful violation of th[e] order [was] a misdemeanor.”8
Governor Whitmer subsequently issued several additional executive orders
extending the Stay-at-Home Order beyond the May 27, 2020, filing deadline for
ballot initiative petitions.
4 See Gov. Whitmer Executive Order 2020-5, Temporary Prohibition on Large Assemblages and Events, Temporary School Closures, https://www.michigan.gov/ whitmer/0,9309,7-387-90499_90705-521595--,00.html. 5 See Gov. Whitmer Executive Order 2020-9, Temporary Restrictions on the Use of Places of Public Accommodation, https://www.michigan.gov/whitmer/0,9309,7A387-90499_90705-521789--,00.html. 6 See Gov. Whitmer Executive Order 2020-21, Temporary Requirement to Suspend Activities That Are Not Necessary to Sustain or Protect Life, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html. 7 Id. 8 Id.
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B SawariMedia insists that Governor Whitmer’s executive orders, and the enforcement of those orders, “made it impossible” to collect the required number of signatures by the May 27, 2020, filing deadline. (Sawari Decl. at ¶20, ECF No. 2, PageID.69.) Thus, on May 4, 2020, SawariMedia and three would-be petition signers filed this action against Governor Whitmer, Michigan Secretary of State Jocelyn Benson, and Michigan’s Director of Elections Jonathan Brater.9 (See Compl., ECF No. 1.) Plaintiffs allege that Defendants’ strict enforcement of the May 27, 2020, filing deadline and the requirement that SawariMedia collect 340,047 signatures under the present circumstances violates their First and Fourteenth Amendment rights. (See id. at ¶¶ 49-60, PageID.10-11.) Plaintiffs also moved for a temporary restraining order and/or preliminary injunction. (See Mot., ECF No. 2.) The Court held a hearing on Plaintiffs’ injunction motion on June 5, 2020, and it granted the motion in a written Opinion and Order on June 11, 2020. (See Op. and Order, ECF No. 17.) In that Opinion and Order, the Court explained that Sixth Circuit precedent “dictates” that this Court review Plaintiffs’ First Amendment challenges to Michigan’s signature requirement and filing deadline for ballot
9 As explained in the Court’s Opinion and Order, due to a delay in filing pro se documents as a result of the COVID-19 pandemic, Plaintiffs’ Complaint was not posted to the Court’s docket until May 20, 2020.
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Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.397 Page 7 of 18
initiatives “under the Anderson-Burdick framework.”10 Thompson v. DeWine, --F.3d ---, 2020 WL 2702483, at *2 (6th Cir. May 26, 2020). Under AndersonBurdick, a court first determines “the burden [that] the State’s regulation imposes on the plaintiffs’ First Amendment rights.” Id. Then, if that burden is “severe,” a court reviews the regulation under strict scrutiny to determine if it is “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434.
In this case, the Court held that “Michigan’s signature requirement and filing deadline for ballot initiative petitions, in combination with Governor Whitmer’s Stay-at-Home Order, severely burdened Plaintiffs’ constitutional right to the ballot.” (Op. and Order, ECF No. 17, PageID.247.) The Court relied heavily on the decision in Esshaki v. Whitmer, --- F. Supp. 3d ---, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020). In Esshaki, another Judge of this Court held that Michigan’s filing deadline and signature requirement for nominating petitions for the United States House of Representatives in combination with Governor Whitmer’s Stay-At-Home Orders severely burdened the constitutional rights of candidates seeking to qualify for Michigan’s primary ballot. See id. The Sixth Circuit affirmed that portion of the court’s ruling. See Esshaki v. Whitmer, --- F. App’x ---, 2020 WL 2185553 (6th Cir. May 5, 2020). Echoing Esshaki, this Court explained:
10 See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).
7

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Like the plaintiff in Esshaki, the Plaintiffs here faced a daunting signature requirement with a firm deadline in the midst of the COVID-19 pandemic. And from March 23, 2020, through May 7, 2020, the Plaintiffs in this action were subject to the exact same Stay-at-Home Order (and the extensions of that order) as the plaintiff in Esshaki – an order that prohibited Michiganders from leaving their homes except in very limited circumstances. Then, from May 7 through May 27, 2020 (the petition submission deadline), the Plaintiffs here were subject to three additional executive orders that continued to require Michigan residents to stay in their homes and avoid all public and private gatherings except as expressly authorized. Just as in Esshaki, the State “pulled the rug out from under the ability [of Plaintiffs] to collect signatures” and “[a]bsent relief, [Plaintiffs’] lack of a viable, alternative means to procure the signatures [they] need[] means that [they] face virtual exclusion from the ballot.” Esshaki, 2020 WL 1910154, at *6. Thus, as in Esshaki, this burden on Plaintiffs’ First Amendment rights is severe.
(Op. and Order, ECF No. 17, PageID.238.) The Court then recognized that the
Defendants had compelling interests in enforcing the signature requirement and
filing deadline. (See id., PageID.247.) However, the Court concluded that, as in
Esshaki, “under the current circumstances and as applied to Plaintiffs,” the signature
requirement and filing deadline were not narrowly tailored. (Id.) The Court therefore
“enjoined [Defendants] from excluding Plaintiffs’ ballot initiative from the 2020
general election ballot on the basis that Plaintiffs did not collect 340,047 valid
signatures by the May 27, 2020, filing deadline.” (Id., PageID.255.) It then
instructed Defendants to “select [their] own adjustments so as to reduce the burden
8

Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.399 Page 9 of 18
on ballot access” and “narrow the restrictions” on Plaintiffs in order to “render the application of the [signature requirement and filing deadline] constitutional under the circumstances.” (Id., PageID.256, quoting Esshaki, 2020 WL 2185553, at *2.)
C Defendants filed a notice of proposed remedy on June 18, 2020. (See Notice, ECF No. 23.) In that proposed remedy, Defendants presented Plaintiffs with two possible options:  Defendants would agree to extend the deadline for Plaintiffs to collect and file 340,047 valid signatures in order to appear on the 2020 general election ballot until July 6, 2020; or  Defendants would agree to toll the time period by which signatures that Plaintiffs had collected to date would expire by 79 days, thereby allowing Plaintiffs an opportunity to qualify for the 2022 ballot without having to start their signature gathering over from square one. The Court held an on-the-record telephonic status conference to discuss the proposed remedy on June 22, 2020, and it rejected both suggested options. (See 6/22/2020 Status Conf. Tr., ECF No. 28; Order Rejecting Proposed Remedy, ECF No. 25.) The Court rejected both aspects of the proposed remedy for the reasons explained below.
9

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Defendants have now appealed both (1) the Court’s Opinion and Order granting Plaintiffs a preliminary injunction and (2) the Court’s rejection of their proposed remedy. (See Notice of Appeal, ECF No. 26.) They have also filed an emergency motion for a stay pending appeal in this Court. (See Mot., ECF No. 30.)
II “A stay is an intrusion into the ordinary processes of administration and judicial review.” Dodds v. United States Dep’t of Education, 845. F.3d 217, 220 (6th Cir. 2016) (quoting Nken v. Holder, 556 U.S. 418, 425 (2009)). “To determine whether to stay the grant of a preliminary injunction, [courts] balance four factors: the movant’s likelihood of success on appeal; whether irreparable injury to the movant will result in the absence of a stay; prospective harm to others if a stay is granted; and the public’s interest in granting a stay.” Id. These are the “the same factors considered in determining whether to issue a TRO or preliminary injunction.” Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
III A The Court begins with whether Defendants are likely to succeed on either aspect of their appeal. They are not. As an initial matter, Defendants have not shown that they are likely to prevail on their appeal of the preliminary injunction. In the Court’s Opinion and Order
10

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granting the injunction, the Court explained at length why the burden on Plaintiffs’ constitutional rights was severe, why the applicable provisions of Michigan law were not narrowly tailored under these circumstances, and why the remaining factors favored a grant of injunctive relief. In Defendants’ motion for a stay, they offer very little argument about, or analysis of, the Court’s reasoning and conclusions. Instead, they rely on the arguments they presented in opposition to Plaintiffs’ motion seeking entry of the injunction. The Court rejected those arguments for the reasons stated in its Opinion and Order, and the Defendants have not shown any error in the Court’s analysis. Thus, Defendants have not demonstrated that they are likely to succeed in their appeal of the preliminary injunction.
Next, for two reasons, the Defendants have not shown that they are likely to prevail on their appeal of the Court’s rejection of their proposed remedy. First, the Defendants have not cast serious doubt on the Court’s conclusion that the proposed remedy fails to eliminate the severe burden on Plaintiffs’ constitutional rights. Simply put, the proposed remedy does not provide Plaintiffs a meaningful or reasonable opportunity to place their initiative on the 2020 general election ballot. The proposed remedy gives Plaintiffs only 25 days – not 40 days as Defendants contend11 – to gather 125,000 signatures. And during those 25 days, all
11 As described above, the proposed remedy extends the deadline for Plaintiffs to collect and file 340,047 valid signatures until July 6, 2020. As Defendants accurately note, there are 40 days between the previous filing deadline (May 27,
11

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Michiganders are subject to continuing restrictions by Governor Whitmer that will
substantially inhibit Plaintiffs’ ability to collect signatures. For instance, while
Governor Whitmer has now rescinded the Stay-at-Home Order, the executive orders
that remain in place still prohibit indoor gatherings of more than 50 people and
outdoor gatherings of more than 250 people.12 Such gatherings are the prime
locations where petition seekers ordinarily gather signatures. The current orders also
restrict the capacity of retail establishments, arcades, bowling alleys, public
swimming pools, concert spaces, race tracks, sports arenas, and other public
2020) and July 6, 2020. But 15 of those days (May 27 – June 11) were after the original filing deadline and before the Court issued its preliminary injunction. During those 15 days, it would not have been reasonable for Plaintiffs to have been collecting signatures. The Defendants had informed Plaintiffs that they (Defendants) would not accept for filing any signatures collected after May 27, 2020, and the Court had yet to issue its injunction. Thus, it would have been entirely reasonable for Plaintiffs to refrain from collecting signatures during the 15-day “dead period” between the original filing deadline (May 27) and the entry of the Court’s injunction (June 11). Indeed, it would have made no sense for them to spend time and money collecting signatures that the Defendants said they would not accept. At an absolute minimum, Defendants should not be heard to complain here that Plaintiffs should have been collecting signatures between May 27 and June 11 when the Defendants told Plaintiffs prior to that time that Defendants would not accept such signatures. For all of these reasons, the 15 days between May 27 and June 11 should not reasonably be counted when calculating the true length of the deadline extension proposed by Defendants. 12 See Gov. Whitmer Executive Order 2020-115, Temporary restrictions on certain events, gatherings, and businesses, https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-531127--,00.html.
12

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spaces.13 And the orders further provide that “[w]ork that can be performed remotely (i.e., without the worker leaving his or her home or place of residence) should be performed remotely.”14 These orders, taken together, substantially limit the number of people who would ordinarily be in public for recreational and/or employment purposes, and they thus create a significant barrier to signature collection. Defendants’ suggestions that Plaintiffs should be able to collect signatures at the same pace as before the pandemic ignores that these myriad restrictions were not in place in January and February when Plaintiffs were previously gathering signatures. For all of these reasons, Defendants’ proposed modest extension of the signature filing deadline does not give Plaintiffs a reasonable opportunity to qualify their proposal for the ballot and does not eliminate the severe burden on Plaintiffs’ constitutional rights.
Second, Defendants have not shown error in the Court’s conclusion that their proposed remedy is not narrowly tailored under the circumstances. For example, Defendants have not sufficiently demonstrated that they are unable to extend the signature filing deadline beyond July 6, 2020. Defendants say that they cannot extend the deadline beyond that date because there are a number of other steps that
13 See id. See also Gov. Whitmer Executive Order 2020-114, Safeguards to protect Michigan’s workers from COVID-19, https://www.michigan.gov/whitmer/0,9309, 7-387-90499_90705-531123--,00.html. 14 Id.
13

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must take place between the time the initiative petitions are submitted and when ballots need to be printed for the November general election. But Defendants have a number of possible options that would permit them to extend the petition submission deadline and still print the ballots on schedule. Defendants could start canvassing Plaintiffs’ currently collected 215,000 signatures now, and allow challenges to those signatures now, instead of waiting to canvass the signatures all at once after a newly imposed filing deadline. If the Defendants took that route, then after the new filing deadline (1) the Board of State Canvassers would have far fewer petitions to review and (2) fewer challenges to signatures would need to be adjudicated. Since there would be less work to do after the deadline, the deadline could be further extended. In addition, the amount of time that the Michigan Legislature has to consider Plaintiffs’ ballot initiative could be reduced below the currently scheduled 40 session days. As the Court explained in the Opinion and Order, the Michigan Legislature, during this pandemic, has introduced, considered, and voted on bills in far less than 40 session days. (See Op. and Order, ECF No. 17, PageID.248 n.20.) Finally, Defendants could reduce the signature requirement to a meaningful number that still ensures that a ballot proposal has a modicum of public support. Indeed, the district court in Esshaki concluded that a remedy that, among other things, reduced the signature requirement required for candidates to appear on the 2020 primary ballot, would be narrowly tailored. See Esshaki, 2020 WL
14

Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.405 Page 15 of 18
1910154, at *11. The Defendants agreed to reduce the signature requirement in
Esshaki, and they may wish to do the same here.15 (See Esshaki, E.D. Mich. Case
No. 20-cv-10831, at ECF No. 38.)
Finally, the aspect of Defendants’ proposed remedy giving Plaintiffs a
potential route to place their proposal on the 2022 ballot – by extending the life of
signatures they have already obtained16 – is not an effective remedy for the
constitutional violation found by the Court. The Court found that the Defendants
wrongfully excluded Plaintiffs’ proposal from the 2020 ballot. Giving Plaintiffs a
shot at getting their proposal on a later ballot does nothing to alleviate the damage
from their wrongful exclusion from the current ballot. Moreover, this aspect of
Defendants’ proposed remedy offers Plaintiffs very little because, even without
15 In Defendants’ stay motion, they argue that “the Court abused its discretion in ordering [a] signature reduction because it went beyond what was necessary to alleviate Plaintiffs’ burden as alleged under the circumstances.” (Mot., ECF No. 30, PageID.380-381; emphasis added.) But the Court has never ordered a signature reduction. The Court’s Opinion and Order granting the injunction specifically said that the Court was not mandating any particular remedy. (See Op. and Order, ECF No. 17, PageID.255-256.) And while the Court rejected Defendants’ most recent proposed remedy, the Court did not state that an effective remedy had to include a signature reduction. Reducing the number of signatures Plaintiffs are required to collect is simply one option Defendants could employ in order to alleviate the violation of Plaintiffs’ constitutional rights. 16 While the Michigan Court of Claims ordered this remedy in a case involving a similar challenge (under state law) to Michigan’s ballot access requirements for initiative proposals, see Fair and Equal Michigan v. Benson, Mich. Ct. Claims Case No. 20-000095 (June 6, 2020), that court did not find the same constitutional violation found by this Court. That the Court of Claims chose this remedy thus sheds little light on whether the remedy is proper here.
15

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Defendants’ proposal, Plaintiffs would have a full opportunity to get their proposal
on the 2022 ballot. Defendants’ suggestion that Plaintiffs try for the 2022 ballot is
simply not a sufficient remedy.
For all of these reasons, the Court concludes that Defendants have not shown
a likelihood of success on their appeal of either (1) the Court’s injunction or (2) the
Court’s rejection of their proposed remedy.
B
The Court is not persuaded that any of the other factors favor a stay.
Defendants argue that “[w]hile there will be no irreparable harm to the Plaintiffs
without an injunction, the issuance of an injunction will irreparably harm the State
and its citizens.” (Mot., ECF No. 30, PageID.383.) Defendants insist that:
Either the Sixth Circuit agrees that the injunction was unwarranted or the State Defendants’ remedy was sufficient, or the Sixth Circuit upholds the injunction. If the Sixth Circuit finds that injunctive relief was not warranted, then Plaintiffs will be not harmed by staying an injunction to which they are not entitled. Or, if Sixth Circuit decides that the Defendants’ proposed relief was sufficient, then the relief offered by the Defendants will be available to Plaintiffs without interference by the stay. On the other hand, if the Sixth Circuit decides that an injunction was appropriate and the proposed relief was insufficient, then the Defendants will likely be required to propose a different remedy that allows Plaintiffs another opportunity to access the November 2020 ballot. In any of these outcomes, Plaintiffs will not be inconvenienced by a temporary stay pending the determination of the appeal.
(Id., PageID.385.) 16

Case 4:20-cv-11246-MFL-MJH ECF No. 32 filed 06/24/20 PageID.407 Page 17 of 18
But a stay would subject Plaintiffs to irreparable harm here. Plaintiffs need to know precisely how many signatures they need to gather and how many days they have to collect those signatures as quickly as possible so that they can best marshal their resources. As described above, there are still significant restrictions in place on the movement of Michiganders that will make for a very difficult signaturegathering environment. Any period of uncertainty will make it more difficult for Plaintiffs to access the 2020 general election ballot. And depending on the length of a stay, and the length of Defendants’ appeal, the Court may or may not be able to remedy that harm given the other procedural steps that must be taken before ballots are printed.
In addition, for all of the reasons stated in the Opinion and Order, the Court remains persuaded that the public interest would not be served by a stay. As the Court explained, “‘[t]he broader public interest [would] not [be] served by preserving the current signature-gathering scheme’ which would have forced ‘supporters [of ballot initiatives] to risk their health and criminal penalties to gather signatures.’ [] Moreover, absent relief, Michigan voters would ‘lose the ability’ to vote for a ballot initiative that, ‘absent the pandemic, would have [likely] been included on the ballot.’ Id. For all of these reasons, the harm to the public and the Plaintiffs outweighs the State’s legitimate interest in enforcing its election laws in the manner and timeframe established prior to the COVID-19 pandemic.” (Op. and
17

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Order, ECF No. 17, PageID.254, quoting Esshaki, 2020 WL 1910154, at *9.) The

same reasoning applies to Defendants’ motion for a stay.

IV

For all of these reasons, Defendants have not persuaded the Court that they

are entitled to a stay of the Court’s preliminary injunction. Defendants’ motion for

a stay pending appeal (ECF No. 30) is therefore DENIED.

IT IS SO ORDERED.

Dated: June 24, 2020

s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on June 24, 2020, by electronic means and/or ordinary mail.
s/Holly A. Monda Case Manager (810) 341-9764

18

 
 Case 4:20-cCva-1s1e2: 4260--M15F9L4-MJHDocEuCmFenNto: .1313-1 fileFdile0d7:/0027//2002/20P2a0geIDP.4a0g9e: 1Page 1 of 6 (1 of 6)

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
Filed: July 02, 2020

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

Mr. Paul Ely 12646 N. Red Bud Trail Buchanan, MI 49107
Mr. Erik A. GrillMs. Heather S. Meingast Michigan Department of Attorney General P.O. Box 30736 Lansing, MI 48909
Judy Kellogg 2450 Krouse Road, Lot # 337 Owosso, MI 48867
Ms. Deborah Parker 21908 Gaukler Street St. Clair Shores, MI 48080
Mr. Saura James Sahu Clancy Advisors, 230 Nickels Arcade Ann Arbor, MI 48104
Re: Case No. 20-1594, SawariMedia, LLC, et al v. Gretchen Whitmer, et al Originating Case No. : 4:20-cv-11246
Dear Counsel,
The attached order designated for full-text publication was filed today in this case.
Yours very truly,

Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosure

Cathryn Lovely, Opinions Deputy

Case 4:20-cCva-1s1e2: 4260--M15F9L4-MJHDocEuCmFenNto: .1313-2 fileFdile0d7:/0027//2002/20P2a0geIDP.4a1g0e: 1Page 2 of 6 (2 of 6)

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SAWARIMEDIA, LLC; DEBORAH PARKER; JUDY ┐

KELLOGG; PAUL ELY,

│

Plaintiffs-Appellees, │

│

>

v.

│

│

│

GRETCHEN WHITMER, Governor of Michigan; │

JOCELYN BENSON, Secretary of State of Michigan; │

JONATHAN BRATER, Director of the Michigan Bureau │

of Elections,

│

Defendants-Appellants. │

┘

No. 20-1594

Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:20-cv-11246—Matthew F. Leitman, District Judge.

Decided and Filed: July 2, 2020

Before: NORRIS, CLAY, and LARSEN, Circuit Judges. _________________

COUNSEL

ON MOTION: Heather S. Meingast, Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants.

_________________

ORDER _________________

This appeal is another in a series of cases concerning the interaction between several states’ stay-at-home orders and the signature requirements needed to gain access to the ballot.

Case 4:20-cCva-1s1e2: 4260--M15F9L4-MJHDocEuCmFenNto: .1313-2 fileFdile0d7:/0027//2002/20P2a0geIDP.4a1g1e: 2Page 3 of 6 (3 of 6)

No. 20-1594

SawariMedia, LLC, et al. v. Whitmer, et al.

Page 2

Plaintiffs are proponents of a criminal-justice reform initiative that they seek to place on the ballot for the 2020 Michigan general election. Defendants include the governor and other state officials, who continued to strictly enforce the signature requirement for initiatives even after the governor had issued an order requiring most Michigan residents to remain in their homes as part of the fight against the COVID-19 pandemic.
When officials told Plaintiffs that the signature requirement would still be enforced against them, they filed suit in the U.S. District Court for the Eastern District of Michigan, alleging that the combination of the stay-at-home order and the signature requirement violates the First Amendment by creating a severe restriction on their access to the ballot. The district court agreed and enjoined the strict enforcement of the signature requirement. SawariMedia LLC v. Whitmer (SawariMedia I), No. 20-CV-11246, 2020 WL 3097266 (E.D. Mich. June 11, 2020). And while Defendants proposed a compromise remedy that included a several-weeks extension of the filing deadline, the district court rejected this proposal as insufficient. Defendants then appealed and now ask for an emergency stay.
When considering a motion to stay, we balance four “interrelated” factors: “(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.” In re Flint Water Cases, 960 F.3d 820, 825 (6th Cir. 2020) (quoting Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016)). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Serv. Employees Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam) (quoting Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). Nevertheless, we may not grant a stay “where the movant presents no likelihood of merits success.” Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020) (quoting La.-Pac. Corp. v. James Hardie Bldg. Prod., Inc., 928 F.3d 514, 517 (6th Cir. 2019)). Because the state is the moving party, its own potential harm and the public’s interest merge into a single

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No. 20-1594

SawariMedia, LLC, et al. v. Whitmer, et al.

Page 3

factor. See Nken v. Holder, 556 U.S. 418, 435 (2009). As the moving party, the state carries “the burden of showing it is entitled to a stay.” DV Diamond Club of Flint, LLC v. Small Bus. Admin., 960 F.3d 743, 746 (6th Cir. 2020) (order).
Defendants claim that two errors by the district court demonstrate a likelihood of success on the merits of their appeal. First, they argue that the district court erred in finding that the burden on Plaintiffs’ access to the ballot was “severe” under the Anderson-Burdick framework, which governs First Amendment challenges to ballot-access restrictions. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). Second, they say that even if the signature requirement and filing deadline are unconstitutional as applied to Plaintiffs, their proposed extension of the deadline in the district court was enough to remedy any infirmity.
We disagree on both fronts. First, with respect to the burden imposed on Plaintiffs’ access to the ballot, the restrictions at issue here are identical to those in Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) (order), which this Court found to be severe, id. at *1. In response, the state tries to argue that Thompson v. DeWine, 959 F.3d 804 (6th Cir. 2020) (per curiam), a case that stayed an injunction of Ohio’s initiative signature requirements, is more applicable. But Thompson distinguished Esshaki almost entirely based on differences between Michigan’s and Ohio’s stay-at-home orders. Id. at 809–10. Defendants’ arguments thus were expressly rejected in Esshaki and implicitly rejected in Thompson; against this backdrop, they cannot show a likelihood of success on appeal.
Second, Defendants have failed to show a likelihood that the district court abused its discretion by rejecting their proposed remedy. In the district court, Defendants proposed extending the petition deadline to July 6. Counting from the original May 27 deadline, they considered this to be a forty-day extension. The district court, however, counted from its June 11 order issuing the preliminary injunction, and considered this to be only a twenty-five-day extension. But even if Defendants were right to count from the May 27 deadline, their proposed July 6 deadline would not be a forty-day extension. The governor’s stay-at-home order remained

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No. 20-1594

SawariMedia, LLC, et al. v. Whitmer, et al.

Page 4

in effect from May 27 until June 1. See Mich. E.O. 2020-96 § 3 (May 21, 2020); Mich. E.O. 2020-100 § 3 (May 22, 2020); Mich. E.O. 2020-110 § 17 (June 1, 2020). Defendants were still unconstitutionally burdening Plaintiffs’ First Amendment rights during that period, so the July 6 deadline would grant, at best, a thirty-five-day extension. Defendants do not argue that the district court would have been obliged to accept a proposed thirty-five-day extension. Accordingly, they have failed to demonstrate they are likely to prevail on this claim. Because Defendants have shown no likelihood that they will prevail on appeal on either claim, they cannot meet their burden of proving entitlement to a stay. Daunt, 956 F.3d at 421–22.1
Finally, we note that Defendants have asked for initial en banc review before this Court in order to consider their argument that the Anderson-Burdick framework should not apply to signature requirements for ballot initiatives, a position they admit is currently foreclosed by panel precedent. See, e.g., Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019) (applying Anderson-Burdick to ballot initiative restrictions), cert. denied, No. 19-974, 2020 WL 2621728 (U.S. May 26, 2020); Comm. to Impose Term Limits on Ohio Supreme Court & to Preclude Special Legal Status for Members & Emps. of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018) (same). But cf. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (“Although the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise.”); Marijuana Policy Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002) (finding that “the legislative act” of using the ballot initiative process “implicates no First Amendment concerns”). We take no position on the merits of that petition, which is currently under consideration by the en banc Court.

1Defendants’ motion briefly defends its first proposed remedy of allowing Plaintiffs’ currently collected signatures to count toward the 2022 election without expressly raising this as an alternative ground for a stay. For the same reasons articulated by the district court, this proposal does nothing to remedy any constitutional infirmity caused by restricting access to the 2020 ballot. See SawariMedia LLC v. Whitmer (SawariMedia II), No. 20-CV11246, 2020 WL 3447694, at *5 (E.D. Mich. June 24, 2020).

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No. 20-1594

SawariMedia, LLC, et al. v. Whitmer, et al.

Page 5

For the reasons stated above, Defendants’ motion for a stay pending appeal is denied. We retain jurisdiction over this appeal but direct the district court to address any further remedy proposed by Defendants by no later than July 15, 2020. If Defendants fail to propose a remedy that resolves the constitutional infirmity by that date, they will be precluded from enforcing the petition deadline against Plaintiffs, pending further review of any proposed remedy by this Court.
ENTERED BY ORDER OF THE COURT

___________________________________ Deborah S. Hunt, Clerk

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.443 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAH PARKER, JUDY KELLOGG and PAUL ELY,
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.

Case No. 4:20-CV-11246 Hon. Matthew F. Leitman Mag. J. Michael J. Hluchaniuk

NOTICE OF SECOND DECLARATION OF AMANI SAWARI

Amani Sawari submits the attached declaration amending certain of her prior

statements. Further undersigned counsel sayeth not.

Respectfully Submitted,

July 23, 2020

By: /s/ Saura J. Sahu Saura J. Sahu (P69627)

1

Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.444 Page 2 of 6

PROOF OF SERVICE

I hereby certify that on July 23, 2020, I caused the aforementioned and at-

tached document to be electronically filed through the Court’s electronic CM/ECF

filing system, which will serve a copy and notice of filing on every attorney of record

for Defendants. I also caused to be served via email the following parties:

Judy Kellogg, In Pro Per, judy kellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.rgeenyard@yahoo.com

I declare under the penalty of perjury that the above statements are true to the best

of my knowledge, information, and belief.

Respectfully Submitted,

July 23, 2020

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

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Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.445 Page 3 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAH PARKER, JUDY KELLOGG and PAUL ELY,
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.

Case No. 4:20-CV-11246 Hon. Matthew F. Leitman Mag. J. Michael J. Hluchaniuk

SECOND DECLARATION OF AMANI SAWARI AMENDING PARAGRAPHS ## 4, 7, 16, 17, 22 and 23 OF HER
DECLARATION DATED MAY 4, 2020

Pursuant to 28 U.S.C. § 1746, I, Amani Sawari, hereby declare as follows: 1. I am the owner and manager of Plaintiff SawariMedia LLC, a Michigan limited liability company . 2. I am fully competent to make this declaration and I have personal knowledge of the facts stated in this declaration.

Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.446 Page 4 of 6
3. Following the Court’s request on July 8, 2020 to provide specific information about the campaign’s progress since May 27, 2020, I held numerous discussions with my campaign team. As a result of those discussions, I have determined that I cannot rely upon prior estimates of the number of signatures that support this petition. Our decentralized approach to campaigning relies upon different team members to take independent responsibility for coordinating the signature-gathering efforts and accounting for those signatures. Before filing this lawsuit, we did not have a centralized repository for signature petitions or a centralized database of petition supporters.
4. When our campaign team first heard in mid-April 2020 about certain relief granted to candidates in the case of Esshaki v. Whitmer, we had not budgeted any money to hire counsel. We wanted, and still want, to devote as many of our resources as possible to the campaign rather than to legal fees. Another supporter of our team and the issue of sentencing reform volunteered to write the complaint materials, and we decided to file the case pro se. We urgently believed that we needed to file the lawsuit as soon as possible because the State’s May 27, 2020 filing deadline was fast approaching, and the courts would need time to hear the matter.
5. Over the next couple weeks, the supporter-drafter worked on the complaint materials. I was aware that, in general throughout the campaign, he was

Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.447 Page 5 of 6
in close contact with two other team members upon whom I regularly depended to be knowledgeable about the campaign and its progress.
6. On or about May 4, 2020, our campaign raised money for the filing fee. On May 4, 2020, I first saw the complaint materials, when I met another team member at the shipping location to sign and send out the filing and service copies to the court and the State. Within approximately one hour, the other team member and I skimmed the complaint, my declaration and the other materials; prepared numerous copies of service packets; packaged and addressed those materials; and sent them out. As reflected by my failure to sign the declaration, I had not carefully reviewed that declaration, but I did believe it to be true based on the information available to me at the time and on my reliance on my team.
7. In the few weeks that followed before a motion hearing in this case, no new facts or reasons arose to question my May 4 declaration. Before the motion hearing, I did not carefully review or critique that declaration. During the motion hearing, I still believed the information in the declaration to be true when the court asked about the declaration and I affirmed the same to be true.
8. Although our campaign is still gathering and documenting the hard data in support of the initiative, and although I do not yet know the correct number of signatures, I believe the number is substantially less than the amount originally estimated.

Case 4:20-cv-11246-MFL-MJH ECF No. 42 filed 07/23/20 PageID.448 Page 6 of 6
9. As a result, and in relation to my unsigned Declaration dated May 4, 2020: (a) I withdraw the reference in Paragraph 7 to any number of valid signatures; and (b) I withdraw my statements in Paragraphs 22 and 23, which discuss “hundreds of thousands” of supporters. I also correct the Declaration insofar as (c) Paragraph 4 should reflect that other team members purchased the website, held town hall meetings and conducted training sessions across the state; and (d) Paragraphs 16 and 17 should reflect that I personally received the information and communications referenced there.
I declare under penalty of perjury that the foregoing is true and correct. Further, declarant sayeth not. Signed this 22nd day of July, 2020.
Respectfully Submitted,
Amani Sawari SAWARIMEDIA, LLC

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 43 filed 07/23/20 PageID.449 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, DEBORAH PARKER, JUDY KELLOGG and PAUL ELY,
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.

Case No. 4:20-CV-11246 Hon. Matthew F. Leitman Mag. J. Michael J. Hluchaniuk

PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(A)(i)

Now comes Plaintiff SawariMedia LLC by counsel, and now come pro se Plaintiffs Parker, Kellogg and Ely who have authorized undersigned counsel for limited purposes to present this notice also on their behalf, to provide notice under Federal Rule of Civil Procedure 41(a)(1)(A)(i) of their voluntary dismissal of this present action, without prejudice.
It has become evident to the Plaintiffs that the circumstances have changed, that the State Defendants will insist upon heavily litigating this case at every level,

Case 4:20-cv-11246-MFL-MJH ECF No. 43 filed 07/23/20 PageID.450 Page 2 of 4
and that the case will not settle on any basis that would offer Plaintiffs a realistic chance to get their initiative on the 2020 ballot. It seems that Plaintiffs’ resources and efforts could better be directed elsewhere.
As of the filing of this notice on July 23, 2020, Defendants have not served Plaintiffs with either an answer or a motion for summary judgment.
Rule 41(a)(1)(A)(i) “provides for dismissal of an action upon the unilateral filing of a notice of dismissal with the Clerk of Court and without the necessity of further agreement by any other party or further order of the court.” D.C. Elecs., Inc. v. Narton Corp., 511 F.2d 294, 296 (6th Cir. 1975). Rule 41(a)(1)(A)(i) allows Plaintiffs to dismiss the action simply by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i).
This Court is familiar with Rule 41(a)(1)(A)(i). See Carmack v. City of Detroit, 2019 WL 316496, at *1 (E.D. Mich. Jan. 24, 2019) (Leitman, J.) (finding Plaintiff entitled to dismissal even after hearings on motions to dismiss where Defendants had not filed an answer or a motion for summary judgment). Under Sixth Circuit precedent, Defendants’ failure to serve Plaintiffs with either an answer or motion for summary judgment is dispositive. See Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993) (the rule “means what it says” and allows “no such case-by-case analysis of the amount of effort expended by the defendants . . . . Unless a defendant

Case 4:20-cv-11246-MFL-MJH ECF No. 43 filed 07/23/20 PageID.451 Page 3 of 4

has filed an answer or summary judgment motion, the governing provision is rule

41(a)(1)”) (quoting Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977)); see

D.C. Elecs., Inc. v. Narton Corp., 511 F.2d 294, 296 (6th Cir. 1975) (“Although Rule

41 has been amended three times since 1948, it has not been broadened to include

other motions or pleadings which would bar a dismissal by notice.”).

Rule 41(a)(1)(A)(i) explicitly requires an answer or a motion for summary

judgment before requiring Plaintiffs to do anything more than give this simple notice

of their voluntary dismissal without prejudice. Defendants failed to file an answer or

motion for summary judgment. Plaintiffs are entitled to dismiss their cases and

hereby do so without prejudice.

WHEREFORE, Plaintiffs SawariMedia LLC, Debra Parker, Judy Kellogg and

Paul Ely respectfully give notice of their voluntary dismissal without prejudice of

the present action.

Respectfully Submitted,

July 23, 2020

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

Case 4:20-cv-11246-MFL-MJH ECF No. 43 filed 07/23/20 PageID.452 Page 4 of 4

PROOF OF SERVICE I hereby certify that on July 23, 2020, I caused the aforementioned and

attached document to be electronically filed through the Court’s electronic CM/ECF

filing system, which will serve a copy and notice of filing on every attorney of record

for Defendants. I also caused to be served via email the following parties:

Judy Kellogg, In Pro Per, judy kellogg95@gmail.com Deborah Parker, In Pro Per, alinosi@yahoo.com Paul Ely, In Pro Per, tlc.rgeenyard@yahoo.com

I declare under the penalty of perjury that the above statements are true to the best

of my knowledge, information, and belief.

Respectfully Submitted,

July 23, 2020

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

 
 Case 4:20-cv-11246-MFL-MJH ECF No. 50, PageID.525 Filed 10/19/20 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAWARIMEDIA LLC, et al.,

Plaintiffs, v. GRETCHEN WHITMER, et al.,

Case No. 20-cv-11246 Hon. Matthew F. Leitman

Defendants. _________________________________/
ORDER (1) VACATING ORDER TO SHOW CAUSE (ECF No. 47) AND (2) VACATING ORDER GRANTING PLAINTIFFS A PRELIMINARY INJUNCTION (ECF No. 17)

On June 11, 2020, the Court issued a preliminary injunction that enjoined

Defendants from keeping Plaintiff SawariMedia LLC’s proposed ballot initiative off

the ballot based on SawariMedia’s inability to collect 340,047 signatures by May

27, 2020. (See Op. and Order, ECF No. 17.) Thereafter, on July 23, 2020, Amani

Sawari filed a declaration in which she retracted several factual assertions on which

the injunction was based. (See Second Sawari Decl., ECF No. 42.) Also on that day,

Plaintiffs filed a notice voluntarily dismissing this action pursuant to Federal Rule

of Civil Procedure 41(a)(1)(A)(i). (See Notice, ECF No. 43.)

On September 22, 2020, the Court held an on-the-record status conference in

this action. During that conference, all parties appeared except for Plaintiff Paul

Ely. The parties that appeared for the conference all agreed that the Court should

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Case 4:20-cv-11246-MFL-MJH ECF No. 50, PageID.526 Filed 10/19/20 Page 2 of 2

vacate its preliminary injunction. However, because Plaintiff Ely did not appear for

the conference, the Court wanted to give Ely one final opportunity to weigh in before

it vacated the injunction. Accordingly, on September 22, 2020, the Court issued an

order to show cause why the preliminary injunction should not be vacated. (See

Show Cause Order, ECF No. 47.) The Court informed the parties that “[i]f no party

timely responds to [the] order” by October 2, 2020, the Court would “vacate the

injunction.” (Id., PageID.458.) Counsel for SawariMedia then served the order on

all parties. (See Certificate of Service, ECF No. 48.)

No party, including Plaintiff Ely, responded to the order to show cause. Thus,

for the reasons stated during the September 22, 2020, status conference, the Court’s

June 11, 2020, preliminary injunction (ECF No. 17) is VACATED. The Court also

VACATES its order to show cause (ECF No. 47).

IT IS SO ORDERED.

Dated: October 19, 2020

s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on October 19, 2020, by electronic means and/or ordinary mail.
s/Deborah Tofil for Holly Monda Case Manager (810) 341-9764
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