CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/3/2023 1

Ballot Access for a New Party 

Erard v. Johnson (Stephen J. Murphy III 

and Laurie J. Michelson, E.D. Mich. 2:12-cv-13627) 

A socialist candidate for Congress filed a pro se federal complaint 

on August 15, 2012, challenging the state’s criteria for listing new 

political parties’ candidates on the ballot. The district court denied 

the candidate relief, and the court of appeals affirmed the denial. 

Subject: Getting on the ballot. Topics: Getting on the ballot; pro 

se party; laches; case assignment. 

On August 15, 2012, Matt Erard, a socialist candidate for Congress, filed a 

pro se federal complaint in the Eastern District of Michigan challenging the 

state’s criteria for new political parties’ listing their candidates on the ballot.1

Two days later, Judge Stephen J. Murphy III referred the case to Magistrate Judge Laurie J. Michelson for pretrial proceedings.2

 On August 20, 

Judge Michelson struck the candidate’s motion for a preliminary injunction 

for defect of service.3 On September 6, three days before Michigan certified 

the November 6 ballot, the candidate filed a second motion for a preliminary 

injunction that also sought a temporary restraining order.4

 On September 12, 

Judge Michelson recommended denial of a temporary restraining order because the candidate had not shown service on the defendants and because 

there was no showing that a preliminary injunction would not provide any 

relief due.5

Judge Michelson heard the preliminary-injunction motion on September 

19 and recommended its denial on the following day.6

 Judge Murphy adopted Judge Michelson’s reports and recommendations on October 29.7

 “Erard 

has failed to show that he is entitled to this extraordinary remedy. He delayed 

in filing this action . . . .”8

The candidate filed an amended complaint on February 25, 2013.9

 On 

May 14, 2014, Judge Murphy dismissed the complaint, adopting in part a 

January 9, 2014, report and recommendation by Judge Michelson.10 Judge 

1. Complaint, Erard v. Johnson, No. 2:12-cv-13627 (E.D. Mich. Aug. 15, 2012), D.E. 1; 

Erard v. Johnson, 905 F. Supp. 2d 782, 790 (E.D. Mich. 2012). 

2. Order, Erard, No. 2:12-cv-13627 (E.D. Mich. Aug. 17, 2012), D.E. 6. 

Judge Michelson became a district judge on March 14, 2014. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

3. Order, Erard, No. 2:12-cv-13627 (E.D. Mich. Aug. 20, 2012), D.E. 11; Erard, 905 F. 

Supp. 2d at 790. 

4. Motion, Erard, No. 2:12-cv-13627 (E.D. Mich. Sept. 6, 2012), D.E. 12; Erard, 905 F. 

Supp. 2d at 789–90. 

5. Erard, 905 F. Supp. 2d at 790–94. 

6. Id. at 794–814; Docket Sheet, Erard, No. 2:12-cv-13627 (E.D. Mich. Aug. 15, 2012). 

7. Erard, 905 F. Supp. 2d at 787–90. 

8. Id. at 789. 

9. Amended Complaint, Erard, No. 2:12-cv-13627 (E.D. Mich. Feb. 25, 2013), D.E. 44. 

10. Opinion, id. (May 14, 2014), D.E. 72 [hereinafter D. Mich. Opinion]; see Report and 
Ballot Access for a New Party 

2 Federal Judicial Center 4/3/2023 

Murphy disagreed with Judge Michelson’s conclusion that the plaintiff might 

be able to prove a First Amendment violation with respect to petition language suggesting that persons signing the party’s ballot-access petition 

promised to join or support the party.11 After Judge Michelson issued her 

report and recommendation, Michigan amended its election law so that petition circulators for new political parties no longer had to be eligible to vote in 

Michigan.12

In an unpublished opinion without oral argument, the court of appeals 

affirmed dismissal of the action on May 20, 2015.13

Recommendation, id. (Jan. 9, 2014), D.E. 55, 2014 WL 1922770. 

11. E.D. Mich. Opinion, supra note 10, at 19–20; see Report and Recommendation, supra

note 10, at 44–48. 

12. E.D. Mich. Opinion, supra note 10, at 20–21; see Report and Recommendation, supra

note 10, at 48–52; see also Michigan Secretary of State Ruth Johnson, Enactment of Legislation Regarding Non-Resident Petition Circulators (Apr. 3, 2014), www.michigan. 

gov/documents/sos/2014PA94_452731_7.pdf, archived at web.archive.org/web/ 

20150210093849/http://www.michigan.gov/documents/sos/2014PA94_452731_7.pdf. 

13. Opinion, Erard v. Johnson, No. 14-1873 (6th Cir. May 20, 2015), D.E. 29.