1 Although the defendants subsequently did file a notice of appeal, docket no. 33, the Court

retains jurisdiction over this motion under Federal Rule of Civil Procedure 62(c).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES STUDENT

ASSOCIATION FOUNDATION, as an

organization and representative of its

members, AMERICAN CIVIL LIBERTIES

UNION FUND OF MICHIGAN, as an

organization and representative of its

members, and AMERICAN CIVIL

LIBERTIES UNION OF MICHIGAN, as an

organization and representative of its

members,

Plaintiff(s),

v.

TERRI LYNN LAND, Michigan Secretary of

State, CHRISTOPHER M. THOMAS,

Michigan Director of Elections, and

FRANCES MCMULLAN, City Clerk for the

City of Ypsilanti, Michigan, in their official

capacities,

Defendant(s).

 /

Case No. 2:08-cv-14019

HONORABLE STEPHEN J. MURPHY, III

ORDER DENYING DEFENDANTS' MOTION FOR STAY PENDING APPEAL

On October 13th, 2008, the Court enjoined the defendant officers of the state of

Michigan to restore to the state's voter rolls certain voters whose registrations were marked

"rejected" after their voter IDs were returned as undeliverable, and to discontinue this

marking practice in the future. Docket no. 27. The defendants recently moved for a stay

of the Court's order pending their appeal, docket no. 30, and have requested expedited

consideration of that motion.1

 The Court granted the defendants' motion to file excess

pages in the brief supporting the stay motion, docket nos. 29 and 35, and has also carefully
2

considered their 34-page brief, as well as the plaintiffs' detailed response, docket no. 36.

Because the arguments in the defendants' brief are mostly reiterations of the ones they

originally presented in opposition to this injunction, the Court has concluded that

defendants' motion will be denied, largely for the reasons stated in its opinion of the 13th.

A few additional observations, however, are required to address new points raised by the

defendants' brief in support of their motion to stay pending appeal.

I.

The defendants correctly point out a typographical error in the Court's October 13th

order on the preliminary injunction motion. In addition to the enjoined practice, this lawsuit

also involves a challenge to Michigan's practice of cancelling the registrations of voters who

apply for driver's licenses in other states. At pages 12 and 13 of the Order, the Court

referred to the portions of the Complaint relevant to the plaintiffs' standing to challenge

each of these practices, and mistakenly transposed citations to paragraphs 73 and 88 of

the original Complaint. As a result, the Order appears to treat the plaintiffs' allegations with

respect to each challenged practice as somehow relevant to their standing to challenge the

other practice.

The plaintiffs' allegations as to their standing to challenge each practice, however, are

identical. As a result, the relevant of the paragraphs transposed in the Order is identical,

and the error was purely typographical, having no effect on the substance of the opinion.

The defendants are thus entirely correct in their presumption, on page 6 of their brief on

this motion, docket no. 30, that the relevant reference was to paragraph 88 of the

Complaint.
 2

 It could be argued that the Court interpreted the receipt-of-registration and provisional-balloting

procedures too generously in favor of the defendants. The Court was of the impression that

presenting a receipt of registration entitled a voter to cast a regular ballot, regardless of the voter's

QVF status. See M.C.L. § 168.523a(1)(a). In their brief on this motion, however, defendants

represent that this is not the case with respect to potential voters whose registrations have been

marked "rejected" because their original IDs were returned as undeliverable. See defendants' brief

supporting motion for stay at n. 8.

3

II.

 To the extent that the defendants suggest that the Court was not cognizant of their

provisional-balloting argument when it granted the preliminary injunction motion, they have

misread the Court's order. There was never any confusion on the part of the Court that

persons appearing at the polls are entitled to provisional ballots regardless of whether they

present a receipt of registration.2 The order addresses the issue of provisional ballots in

footnote 12, recognizing that a voter can "always" cast a provisional ballot. October 13

Order, docket no. 27, at 30 n.12. The Court regarded the provisional ballot option as

unhelpful to the defendants' case not because provisional ballots are unavailable to voters

affected by the undeliverable ID practice, but because it appears that if a voter's registration

is marked "rejected" pursuant to the practice, then even if he or she casts a provisional

ballot, the ballot will not be counted. Id.

The defendants argue otherwise, citing to M.C.L. §168.523a. The statutory provision

relied upon by the defendants, however, confirms rather than disproves the Court's

understanding. Subsection (2) of § 168.523a states that in order to receive a provisional

ballot, a voter whose name is not on the local rolls and who appears at the polls without a

voter-registration receipt must "execute a sworn statement affirming that the individual

submitted a voter registration application before the close of registration and is eligible to

vote in the election." Subsection (3) requires polls workers to communicate this information

to the local clerk. Under subsection (4), "[i]f the city or township clerk verifies the elector
4

information and finds no information contrary to the information provided by the individual

in the sworn statement," then on presenting one of several enumerated forms of

identification the voter may cast a provisional ballot, which will be processed in a manner

similar to regular "challenged" ballots. Under subsection (5), if the local clerk is unavailable

when the voter is at the polls, or if the voter is unable to produce a form of subsection (4)

identification, the voter's provisional ballot will be counted only if it can be "verifi[ed] after

the election" by means that are unspecified, but presumably identical to the verification by

the local clerk contemplated by subsection (4).

Consistent with the Court's observation in footnote 12 of its October 13th Order, this

process seems to require the validity of provisional ballots to be determined by reference

to the QVF. It is unclear how the local clerk could "verify" the voter's statement that he or

she is a Michigan resident "eligible to vote in the election," or discover any "contrary

information," except by reference to the voter's address on file in the QVF. But of course,

if a voter's registration is marked "rejected" in the QVF because his or her voter ID card

was returned as undeliverable, the clerk will not be able to verify the address and indeed

may regard this marking as contrary information on the issue of residency. As a result,

even if the potential voter were able to cast a provisional ballot, it would ultimately not be

counted. 

This at least appears to be the most likely application of the statutory language to

these circumstances. The defendants claim that it is incorrect, and that only a voter's own

lack of cooperation can prevent his or her provisional ballot from being counted.

Defendants' brief, docket. no. 30, at 9-10. But they offer no explanation as to how a local

clerk would be able to verify a provisional voter's address or interpret the "rejected" marking

as anything but contrary information -- indeed, in their subsequent discussions of
5

provisional balloting they do not even mention the statutory requirements. See id. at 9-

10,19. Without such an explanation, the Court was and is forced to conclude that a

"rejected" QVF notation is fatal to the validity of a voter's provisional ballot, as well as to his

or her eligibility to cast a regular ballot.

III.

The defendants' contention that the Court failed to recognize their argument that the

undeliverable ID practice is designed to keep non-residents off the voter rolls is also based

on a misunderstanding of the Order. The Court did and does recognize that "preventing

non-residents from voting within its borders," Order at 39, is the primary purpose of the

undeliverable ID practice. Footnote 5 of the Order, which the defendants claim reflects the

Court's confusion, simply recognizes that after a potential voter becomes a "registrant"

within the meaning of the NVRA, the voter's failure to demonstrate in-state residence

before becoming registered is no longer a lawful ground for removing him or her from the

rolls. In no way does this call into question the state's obviously important interest in

preventing non-residents from ever becoming registered in the first place -- which is what

the defendants claim their undeliverable ID practice actually does.

IV.

In their brief on their motion for a stay, defendants claim for the first time that the

Eleventh Amendment bars the Court from ordering them to restore voters to the rolls in

order to undo any harm caused by their past actions. In Edelman v. Jordan, 415 U.S. 651

(1974), the Supreme Court recognized that the Eleventh Amendment bars courts from

hearing cases "seeking to impose a liability which must be paid from public funds in the

state treasury," id. at 663, even when the money relief sought was characterized as

equitable in nature, id. at 668. Clearly, the present case does not involve any payment of
6

money to persons allegedly harmed or at risk of harm from Michigan's actions. Edelman,

however, has been interpreted broadly, to bar not "only retroactive monetary relief, but

rather all retroactive relief." S&M Brands, Inc. v. Cooper, 527 F. 3d 500, 509 (6th Cir.

2008).

There are three obstacles to plaintiffs' proposed application of the principles of

Edelman to this situation. First, the typical remedy barred by the Eleventh Amendment is

an injunction requiring some form of payment from the state treasury to the injured party.

But that is not the situation here. Second, and perhaps more notably, the line between

prospective and retroactive relief is known to be blurry. Although cases such as Edelman

and S&M Brands seem straightforward, in Milliken v. Bradley, 433 U.S. 267, 290 (1977),

the Supreme Court held that a district court that the power not only to enjoin against

segregation in public schools, but also to require the defendants to take affirmative steps

to eliminate the negative effects that segregation had on the education of students and

former students. The Court concluded that the "compensatory" nature of the programs

required by the district court "does not change the fact that they are part fo a plan that

operates prospectively to bring about the delayed benefits of a unitary school system." Id.

Third, and most importantly, even if the Edelman rule governs here, it is not at all clear

that the relief ordered by the Court in this case is "retroactive." Indeed, this case presents

what may prove to be a rather unusual remedial circumstance. To be sure, the violations

of federal law with respect to which the defendants are now claiming sovereign immunity --

namely, Michigan's "rejections" of voter registrations -- all occurred in the past. 

Nevertheless, the relief fashioned by the Court -- restoration to the rolls -- is addressed only

toward preventing the future harm of disenfranchisement that may result from those

violations. The Court has not ordered and will not order the defendants to take any action
 3

 With respect to the defendants' practice of sending reply cards to voters to permit the

reactivation of their cancelled registrations, the Court noted that "even voters who receive the cards

and return them will have been wrongfully taken off the rolls until the date that their cards are

processed and their registrations are reactivated." Order, docket no. 26, at p. 30. This was

intended as a reference to the possibility that an election and a disenfranchisement might have

intervened between cancellation and reactivation, not a recognition that simply being removed from

the rolls is any sort of cognizable harm.

7

merely to make amends for removing names from the voter rolls, or even for any past

denials of the right to vote. Indeed, the Court's understanding that merely being removed

from the rolls (or facing the possibility of removal) would not even confer standing to sue

unless a registrant also remained eligible to vote, and thus faced future

disenfranchisement, is implicit throughout the Order and explicitly stated twice.3

 Id. at 24

n.8, 25-26

The question, then, is whether the Eleventh Amendment permits a federal court to

order state officials to undo violations of federal law committed in the past for the sole

purpose of preventing harm that may result from those violations in the future, where the

violations in question did not deprive the injured persons of monetary payments and can

be undone without any transfer of funds from the state treasury to those persons. The

defendants' cursory invocation of the Eleventh Amendment makes no real effort to address

this question. Defendants' brief, docket no. 30, at 24-25. In a motion to stay a preliminary

injunction pending appeal, however, the movant bears the burden of proving his or her

likelihood of succeeding on appeal. See Summit County Democratic Cent. & Exec. Comm.

v. Blackwell, 388 F. 3d 547, 550 (6th Cir. 2004). The defendants have not carried that

burden here, and neither does the Court's independent research lead it to conclude that the

Eleventh Amendment bars the relief it has ordered. Should the defendants wish to raise

this argument more fully at a later stage in the proceedings, the Court will reconsider it at

that time.
8

Accordingly, it is hereby ORDERED that the state defendants' motion for a stay

pending appeal is DENIED.

s/Stephen J. Murphy, III 

Stephen J. Murphy, III

United States District Judge

Dated: October 24, 2008

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on October 24, 2008, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager