CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 7/8/2023 1

Nullifying an Initiative Gag Order 

Taylor v. Johnson 

(John Corbett O’Meara, E.D. Mich. 5:16-cv-10256) 

A district judge issued a preliminary injunction against a new statute 

that forbade local officials from providing any information on pending initiatives within sixty days of an election. 

Subject: Ballot measures. Topics: Ballot measure; campaign 

materials; campaign finance. 

On January 26, 2016, seventeen local officials in Michigan and one voter filed 

a federal complaint in the Eastern District of Michigan against the state and 

its secretary of state challenging the constitutionality of a “gag order on public 

bodies and public officials that prohibits them from communicating with and 

informing their constituents about ballot questions in an objectively neutral 

way during the two months before an election.”1 Effective January 6, Michigan’s election laws provided, 

Except for an election official in the performance of his or her duties under the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, a public 

body, or a person acting for a public body, shall not, during the period 60 

days before an election in which a local ballot question appears on a ballot, 

use public funds or resources for a communication by means of radio, television, mass mailing, or prerecorded telephone message if that communication 

references a local ballot question and is targeted to the relevant electorate 

where the local ballot question appears on the ballot.2

With their complaint, the plaintiffs filed a motion for a temporary restraining 

order and a preliminary injunction.3

Judge John Corbett O’Meara set the case for hearing on February 4.4 He 

accepted four amicus curiae briefs.5

On February 5, he ruled that the provision was void as unconstitutionally 

vague.6

 “Public officials deserve clarity on this issue so that they may serve the 

1. Complaint at 2, Taylor v. Johnson, No. 5:16-cv-10256 (E.D. Mich. Jan. 26, 2016), D.E. 

1; see Lawsuit: “Gag Order” Unconstitutional, Cheboygan Daily Trib., Jan. 27, 2016, at A3; 

Caleb Whitmer, Lawsuit Filed Against Controversial Ballot Question Restrictions, Holland 

Sentinel, Jan. 27, 2016, Mich. News, at 3. 

2. Mich. Comp. Laws § 169.257(3); see Opinion at 2, Taylor, No. 5:16-cv-10256 (E.D. Mich. 

Feb. 5, 2016), D.E. 27, 2016 WL 447539.

3. Motion, Taylor, No. 5:16-cv-10256 (E.D. Mich. Jan. 26, 2016), D.E. 3. 

4. Notice, id. (Jan. 29, 2016), D.E. 14; see Notice, id. (Jan. 28, 2016), D.E. 13 (initially setting 

the hearing for February 3). 

5. Brief, id. (Feb. 3, 2016), D.E. 26; Brief, id. (Feb. 2, 2016), D.E. 24; Docket Sheet, id. (Jan. 

26, 2016). 

6. Opinion, supra note 2, at 9; see Jonathan Oosting, Judge Halts “Gag Order” Law on Ballot 

Info, Detroit News, Feb. 6, 2016, at A3; see also Jackie Smith, Officials Hurry Ballot Issue Info 

Out to Voters, Port Huron Times Herald, Feb. 22, 2016, at A6. 
Nullifying an Initiative Gag Order 

2 Federal Judicial Center 7/8/2023 

public in the normal course without fear of arbitrary sanction or prosecution.”7

 “For example, Plaintiff Douglas Alexander, City Manager for the City 

of Algonac, was planning to communicate factual, neutral information regarding a ballot proposal in the city’s quarterly newsletter.”8

Pursuant to the parties’ agreement, Judge O’Meara converted the preliminary injunction to a permanent injunction, thereby resolving the case, on 

April 28.9

7. Opinion, supra note 2, at 9; see Amy Biolchini & Caleb Whitmer, Temporary Reprieve, 

Holland Sentinel, Feb. 7, 2016, Mich. News, at 1. 

8. Opinion, supra note 2, at 3. 

9. Consent Judgment, Taylor, No. 5:16-cv-10256 (E.D. Mich. Apr. 28, 2016), D.E. 35.