CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/27/2023 1

Casting Provisional Ballots 

in the Wrong Precinct in Michigan 

Bay County Democratic Party v. Land (1:04-cv-10257) 

and Michigan State Conference of NAACP Branches v. Land 

(1:04-cv-10267) (David M. Lawson, E.D. Mich.) 

Local branches of the Democratic Party filed a federal complaint to 

challenge a state directive that provisional ballots would only be 

counted if cast in the correct precinct. Three days later, three organizations filed a similar action in the same district, and the court 

consolidated the two cases. The district court denied a motion by 

voters to intervene as defendants, but the court permitted their participation as amici curiae. The court denied the Justice Department’s motion for a short delay so that it could file an amicus brief. 

Three weeks after the first case was filed, the court determined that 

provisional ballots must be counted so long as they are cast in the 

correct city, village, or township. One week later, the court of appeals reversed that decision in light of a contrary holding in another 

case issued on the same day. 

Topics: Provisional ballots; Help America Vote Act (HAVA); 42 

U.S.C. § 1983; intervention; case assignment. 

Local branches of the Democratic Party filed a federal complaint on September 28, 2004, in the Eastern District of Michigan’s Bay City courthouse, alleging that a directive issued by Michigan’s director of elections violated the 

Help America Vote Act (HAVA).1 The directive stated that provisional ballots would only be counted if they were cast in the correct precinct.2

 With 

their complaint, the plaintiffs filed a motion for a preliminary injunction.3

The court assigned the case to Judge David M. Lawson, who was the 

court’s only judge in Bay City.4 He set a hearing on the injunction motion for 

fifteen days later.5 Judge Lawson declined to use the plaintiffs’ proposed order to show cause—“a relic of the past and unnecessary, except, perhaps, in 

1. Complaint, Bay Cty. Democratic Party v. Land, No. 1:04-cv-10257 (E.D. Mich. Sept. 

28, 2004), D.E. 1 [hereinafter Bay Cty. Democratic Party Complaint]; Bay Cty. Democratic 

Party v. Land, 347 F. Supp. 2d 404, 417 (E.D. Mich. 2004); see Pub. L. No. 107-252, 116 Stat. 

1666 (2002), as amended, 52 U.S.C. §§ 20901–21145; see also Amy F. Bailey, Democrats Sue 

Over Polling Place Issue, Grand Rapids Press, Sept. 29, 2004, at C6. See generally Marie Leary 

& Robert Timothy Reagan, The Help America Vote Act (Federal Judicial Center 2012); 

Symposium, HAVA @ 10, 12 Election L.J. 111 (2013). 

2. Ex. 2, Bay Cty. Democratic Party Complaint, supra note 1. 

3. Preliminary-Injunction Motion, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. 

Mich. Sept. 28, 2004), D.E. 4. 

4. Docket Sheet, id. (Sept. 28, 2004). 

Tim Reagan interviewed Judge Lawson for this report by telephone on October 3, 2012. 

5. Order, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Sept. 28, 2004), 

D.E. 3. 
Casting Provisional Ballots in the Wrong Precinct in Michigan 

2 Federal Judicial Center 10/27/2023 

contempt proceedings”—because it improperly suggested that the defendants had the burden of persuasion.6

On October 1, three organizations filed a similar action in the same district.7

 Judge Lawson consolidated the two cases on October 5.8 That same 

day, the second set of plaintiffs filed a motion for a preliminary injunction.9

On the next day, five voters, four of whom were also county or municipal 

clerks, moved to intervene as defendants.10 On the day before the hearing, 

Michigan moved to join the U.S. Department of Justice as either a party or 

an amicus curiae.11

On the day of the hearing, Judge Lawson denied Michigan’s October 5 

motion to transfer the case to the Western District, which includes the state’s 

capital.12 In cases of this type, Judge Lawson was always prepared for threshold issues: venue, standing, ripeness, mootness, and other jurisdictional issues.13

Judge Lawson determined that an evidentiary hearing was necessary to 

address factual allegations.14 He often found live testimony more efficient 

than affidavits and counteraffidavits in resolving factual issues.15

Two days after the Wednesday hearing, the Justice Department asked 

Judge Lawson to delay ruling on the injunction motions until after he could 

review the department’s amicus curiae brief, which the department would 

file on Monday.16

The Court is always interested in the position of the United States on 

matters of national interest, such as is presented in this case. However, if the 

Court permits the amicus filing, in fairness it ought to allow the parties to 

the case an opportunity to respond. Given the need for a prompt decision, 

6. Id. at 1–2. 

7. Complaint, Mich. State Conference of NAACP Branches v. Land, No. 1:04-cv-10267 

(E.D. Mich. Oct. 1, 2004), D.E. 1; Bay Cty. Democratic Party v. Land, 347 F. Supp. 2d 404, 

417 (E.D. Mich. 2004). 

8. Order, Mich. State Conference of NAACP Branches, No. 1:04-cv-10267 (E.D. Mich. 

Oct. 5, 2004), D.E. 2; Order, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Oct. 

5, 2004), D.E. 11; Bay Cty. Democratic Party, 347 F. Supp. 2d at 417. 

9. Preliminary-Injunction Motion, Mich. State Conference of NAACP Branches, No. 1:04-

cv-10267 (E.D. Mich. Oct. 5, 2004), D.E. 9. 

10. Intervention Motion, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Oct. 

6, 2004), D.E. 12; Bay Cty. Democratic Party, 347 F. Supp. 2d at 417–18; see also Intervention 

Motion, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Oct. 8, 2004), D.E. 20. 

11. Joinder Motion, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Oct. 12, 

2004), D.E. 31. 

12. Bay Cty. Democratic Party v. Land, 340 F. Supp. 2d 802 (E.D. Mich. 2004); see Bay 

Cty. Democratic Party, 347 F. Supp. 2d at 417; Transfer Motion, Bay Cty. Democratic Party, 

No. 1:04-cv-10257 (E.D. Mich. Oct. 5, 2004), D.E. 8. 

13. Interview with Hon. David M. Lawson, Oct. 3, 2012. 

14. Id. 

15. Id. 

16. Amicus Order, Bay Cty. Democratic Party, No. 1:04-cv-10257 (E.D. Mich. Oct. 19, 

2004), D.E. 50 [hereinafter Bay Cty. Democratic Party Amicus Order]; see Amicus Motion, 

id. (Oct. 18, 2004), D.E. 47. 
Casting Provisional Ballots in the Wrong Precinct in Michigan 

Federal Judicial Center 10/27/2023 3

the Court finds that the request of the United States is not timely. Moreover, the Court has reviewed the filing and determines that it adds nothing to 

the arguments already advanced by the defendants and the other amici.

17

Judge Lawson resolved the injunction motions on Tuesday, October 19.18

First, he denied the five voters intervention, but he permitted their participation as amici curiae.19 He found that voters could enforce HAVA rights 

through 42 U.S.C. § 1983.20 He determined that HAVA guarantees that provisional ballots cast for federal offices be counted so long as they are cast in 

the correct city, village, or township.21

On October 26, the court of appeals reversed the injunction in light of its 

holding that same day in an Ohio case that HAVA does not give voters the 

right to cast ballots in the wrong precinct.22

17. Bay Cty. Democratic Party Amicus Order, supra note 16, at 2. 

18. Bay Cty. Democratic Party v. Land, 347 F. Supp. 2d 404; see State, Opponents Debate 

Provisional Ballot Plan, Grand Rapids Press, Oct. 14, 2004, at B6 (reporting that the hearing 

lasted five hours and that the state had requested a ruling by Wednesday so it would have 

time to train election officials if necessary). 

19. Bay Cty. Democratic Party, 347 F. Supp. 2d at 438. 

20. Id. at 411, 424–27, 438. 

21. Id. at 434, 438; see Provisional Ballots Must Be Counted, Federal Judge Rules, Grand 

Rapids Press, Oct. 20, 2004, at C2 (reporting also that the Justice Department had opposed 

the injunction). 

22. Order, Mich. State Conference of NAACP Branches v. Land, Nos. 04-2307 and 04-

2318 (6th Cir. Oct. 26, 2004), filed as Order, Bay Cty. Democratic Party v. Land, No. 1:04-cv10257 (E.D. Mich. Nov. 15, 2004), D.E. 68; see Sandusky Cty. Democratic Party v. Blackwell, 

387 F.3d 565 (6th Cir. 2004); see also Court Reverses Ruling on Ballots, Detroit News, Oct. 27, 

2004, at 2; David Eggert, Appeals Court Reverses Provisional Ballot Ruling, Grand Rapids 

Press, Oct. 27, 2004, at C5.