CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 7/16/2023 1

Anonymous Campaign Literature 

and Keeping a Candidate Off the Ballot 

Davis v. Johnson (2:16-cv-13545) and Simpson v. Garrett 

(2:16-cv-13784) (Arthur J. Tarnow, E.D. Mich.) 

A frequent litigant and an incumbent school-board member filed 

federal actions challenging restrictions on anonymous campaigning 

and seeking to overturn state-court actions putting another candidate on the ballot. The district judge determined that the challenge 

to campaign restrictions required further administrative review and 

the challenge to state-court rulings was barred by judicial immunity 

and the Rooker-Feldman doctrine, which states that among federal 

courts only the Supreme Court has appellate jurisdiction over statecourt proceedings. The court of appeals decided that litigation of this 

type belongs in state courts. 

Subject: Campaign activities. Topics: Matters for state courts; 

getting on the ballot; campaign materials. 

A voter filed a federal complaint in the Eastern District of Michigan on October 3, 2016, seeking a declaration of unconstitutionality for a Michigan statute 

that would forbid the plaintiff from “print[ing] and distribut[ing] anonymous 

campaign literature advocating the defeat of certain candidates who were running for the Detroit Community School District Board of Education.”1

 Named 

as defendants were state and county election officials and a circuit judge for 

Wayne County.2 With his counseled complaint, the voter filed an application 

to proceed in forma pauperis3 and a motion for a temporary restraining order 

or a preliminary injunction.4 Judge Arthur J. Tarnow allowed the voter to proceed without fees5

 and set a telephonic conference for October 6.6

The federal case followed unsuccessful filings by the voter in state court. 

Following the voter’s challenge to the candidacy of Penelope Bailer, the county 

election commission eliminated Bailer from the November 8 ballot for Detroit’s board of education because her affidavit of identity did not include her 

precinct number.7

 On September 16, the Wayne County circuit judge who 

1. Complaint at 6, Davis v. Johnson, No. 2:16-cv-13545 (E.D. Mich. Oct. 3, 2016), D.E. 1 

[hereinafter Davis Complaint]; see Mich. Comp. Laws § 169.247(1). 

2. Davis Complaint, supra note 1. 

3. IFP Application, Davis, No. 2:16-cv-13545 (E.D. Mich. Oct. 3, 2016), D.E. 2. 

4. Motion, id. (Oct. 3, 2016), D.E. 3. 

5. IFP Order, id. (Oct. 5, 2016), D.E. 4. 

Judge Tarnow died on January 21, 2022. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

6. Notice, id. (Oct. 6, 2016), D.E. 8; see Docket Sheet, id. (Oct. 3, 2016) [hereinafter E.D. 

Mich. Davis Docket Sheet] (minutes). 

7. See Shawn D. Lewis, 2 School Board Candidates Off Ballot, Detroit News, Sept. 15, 2016, 

at A5. 
Anonymous Campaign Literature and Keeping a Candidate Off the Ballot 

2 Federal Judicial Center 7/16/2023 

would be named as a defendant in the federal action issued a writ of mandamus putting Bailer back on the ballot.8

 On September 21, Michigan’s court of 

appeals dismissed an appeal by the voter and his sister, a write-in candidate, 

because they were not parties to the mandamus action, noting that their interests had been “more than adequately represented.”9

 Michigan’s supreme court 

denied review on September 22.10 The voter and the write-in candidate filed 

their own action in Wayne County’s circuit court, which the circuit judge dismissed on September 28.11

The voter’s federal complaint sought relief from his lack of success in state 

court and from county election officials’ “deliberately and intentionally not 

appealing the clearly erroneous [mandamus] Order.”12 An October 10 

amended complaint added an incumbent candidate as a plaintiff.13

Following a second telephonic conference on October 14,14 Judge Tarnow 

issued an October 19 opinion dismissing the county circuit judge as a defendant because of judicial immunity and the Rooker-Feldman doctrine, which 

states that among federal courts only the Supreme Court has appellate jurisdiction over state-court proceedings.15 Judge Tarnow also dismissed the incumbent as a plaintiff, because she was pursuing different claims for relief.16

Because the voter had not pursued administrative procedures for his campaign 

activities, Judge Tarnow otherwise decided to hold federal-court proceedings 

in abeyance.17

The incumbent candidate filed her separate federal complaint on October 

24, challenging the state court-order putting Bailer on the November ballot.18

With her complaint, the incumbent filed a motion for a temporary restraining 

order or a preliminary injunction.19 Judge Tarnow set a telephonic conference 

8. Writ, Bailer v. Winfrey, No. 16-011797-AW (Mich. Cir. Ct. Wayne Cty. Sept. 16, 2016), 

filed as Ex. F, Davis Complaint, supra note 1; see Docket Sheet, id. (Sept. 14, 2016), cmspublic. 

3rdcc.org/. 

9. Opinion, Bailer v. Detroit City Clerk, No. 334823 (Mich. Ct. App. Sept. 21, 2016), 2016 

WL 5328522. 

10. Bailer v. Detroit City Clerk, 884 N.W.2d 788 (Mich. 2016). 

11. Order, Davis v. Garrett, No. 16-012226-AW (Mich. Cir. Ct. Wayne Cty. Sept. 28, 2016), 

filed as Ex. H, Davis Complaint, supra note 1; see Docket Sheet, id. (Sept. 23, 2016), cmspublic. 

3rdcc.org/. 

12. Davis Complaint, supra note 1, at 2–3. 

13. Amended Complaint, Davis v. Johnson, No. 2:16-cv-13545 (E.D. Mich. Oct. 10, 2016), 

D.E. 10; see Amended Motion, id. (Oct. 11, 2016), D.E. 12 (voter’s motion for immediate relief); Motion, id. (Oct. 11, 2016), D.E. 11 (incumbent’s motion for immediate relief). 

14. E.D. Mich. Davis Docket Sheet, supra note 6 (minutes). 

15. Amended Opinion at 3–6, Davis, No. 2:16-cv-13545 (E.D. Mich. Oct. 20, 2016), D.E. 

25 [hereinafter E.D. Mich. Davis Abeyance Opinion], amending Opinion, id. (Oct. 19, 2016), 

D.E. 22; see D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 

263 U.S. 413 (1923); see also Martin A. Schwartz, Section 1983 Litigation 21–24 (Federal Judicial Center 3d ed. 2014). 

16. E.D. Mich. Davis Abeyance Opinion, supra note 15, at 2–3, 6. 

17. Id. at 3, 6. 

18. Complaint, Simpson v. Garrett, No. 2:16-cv-13784 (E.D. Mich. Oct. 24, 2016), D.E. 1. 

19. Motion, id. (Oct. 24, 2016), D.E. 2. 
Anonymous Campaign Literature and Keeping a Candidate Off the Ballot 

Federal Judicial Center 7/16/2023 3

for October 27.20 At the conference, he ordered the defendants to respond to 

the incumbent’s motion by November 7.21

On October 31, the voter asked Judge Tarnow to reopen his case, because 

he had received preliminary indications from state election officials that his 

anonymous campaigning would not be permitted.22 On the following day, 

Judge Tarnow denied the motion, because state administrative review was not 

yet complete.23

On October 29, three days after the voter’s appeal from the dismissal of the 

state judge as a federal defendant was docketed, the voter filed a motion to 

expedite the appeal so that it would be decided by election day.24 The motion 

also briefed the merits of the appeal.25 On November 4, two circuit judges concluded that “this entire matter should be in state court” and ordered the district-court case dismissed without argument or further briefing.26 The third 

judge would have denied the motion to expedite the appeal and left determination of the courts’ jurisdiction for decision after briefing on the issue.27 The 

majority characterized state and federal court filings by the voter and his attorney as “repetitive, vexatious, and frivolous,” although the majority also 

characterized the observation as “not pertinent to the adjudication of this appeal.”28 The dissenting judge observed that even a vexatious litigant is “entitled 

to notice and an opportunity to be heard.”29 Judge Tarnow dismissed the 

voter’s case on November 15.30

On November 8, neither Bailer nor the incumbent candidate was elected 

to the school board.31 Judge Tarnow dismissed the incumbent candidate’s federal complaint on December 28.32

20. Notice, id. (Oct. 27, 2016), D.E. 6. 

21. Docket Sheet, id. (Oct. 24, 2016) (minutes). 

22. Motion, Davis v. Johnson, No. 2:16-cv-13545 (E.D. Mich. Oct. 31, 2016), D.E. 28. 

23. Opinion, id. (Nov. 1, 2016), D.E. 29. 

24. Motion, Davis v. Johnson, No. 16-2499 (6th Cir. Oct. 29, 2016), D.E. 8 [hereinafter 6th 

Cir. Motion]; see Docket Sheet, id. (Oct. 26, 2016). 

25. 6th Cir. Motion, supra note 24, at 3–7. 

26. Davis v. Johnson, 664 F. App’x 446, 450–51 (6th Cir. 2016) (opinion by Circuit Judge 

Eric L. Clay, joined by Circuit Judge Julia Smith Gibbons). 

27. Id. at 451–52 (concurring and dissenting opinion by Circuit Judge Helene N. White). 

28. Id. at 450. 

29. Id. at 452. 

30. Order, Davis v. Johnson, No. 2:16-cv-13545 (E.D. Mich. Nov. 15, 2016), D.E. 31. 

31. See Members of the Detroit Board of Education, detroitk12.org/board/members/, archived at web.archive.org/web/20170209102023/detroitk12.org/board/members/; Shawn D. 

Lewis, Detroit Picks 7 to Lead New District, Detroit News, Nov. 10, 2016, at A6. 

32. Opinion, Simpson v. Garrett, No. 2:16-cv-13784 (E.D. Mich. Dec. 28, 2016), D.E. 12, 

2016 WL 7453763.