1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

American Federation of State, 

County and Municipal Employees, 

Council 25, as an organization, and Case#

representative of its members, Hon. Judge 

Catherine Phillips, and 

Charles Williams EXPIDITED CONSIDERATION

 REQUESTED 

 

Plaintiffs, 

 

V 

 

Terri Lynn Land, 

Michigan Secretary of State, 

and Christopher M. Thomas, Director of 

Bureau of Elections, in their official capacities, 

Defendants.

______________________________________________________________________/ 

HERBERT A. SANDERS (P43031) Aina N. Watkins (P69196) 

THE SANDERS LAW FIRM, P.C. Staff Attorney 

Attorney for Plaintiffs Michigan AFSCME Council 25 

635 Beaubien Attorney for Plaintiff AFSCME 

Detroit, MI 48226 only 

Phone (313) 962-0099 600 W. Lafayette, Ste. 500 

Fax (313) 962-0044 Detroit, MI 48226 

 Phone (313) 964-1711 ext. 237 

Fax (313) 964-0230 

_____________________________________________________________________/ 

PLAINTIFFS’ EX PARTE MOTION 

FOR DECLARATORY JUDGMENT, 

PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, 

AND EXPEDITED CONSIDERATION 

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NOW COME the Plaintiffs, by and through their attorneys, and for their Motion in 

accordance with FRCP 56, 57, & 65 state as follows: 

1. This action arises under Voting Right Acts 42 U.S.C. § 1971, as amended, and 

42 USCS § 1973 as amended, the First, Fifth, Fourteenth and Fifteenth 

Amendments to the Constitution of the United States. 

2. It seeks a declaratory judgment that the Defendants’ interpretation and 

application of its interpretation of MCL 168.744 is in violation of MCL 168.744, 42 

U.S.C. § 1971, as amended, 42 U.S.C. § 1973 as amended, the First, Fifth, 

Fourteenth and Fifteenth Amendments; and preliminary and permanent 

injunctions against the application and enforcement of Defendants’ interpretation 

of the Act. 

3. Jurisdiction is conferred on this Court by Title 28 USCS §§ 1343(3) and (4), 2201 

and 2202, and by U.S.C. §§ 1971 (d) and 1973 (j)(f); and Title 42 USCS 1983. 

4. Private litigants may enforce their rights under 42 U.S.C. § 1971 and 42 USCS § 

1973 by bringing a suit under 42 U.S.C. § 1983. 

5. 42 U.S.C. § 1983 authorizes suits for the deprivation of a right secured by the 

Constitution or the laws of United States caused by a person acting under the 

color of state law. 

6. Plaintiffs requests expedited consideration of their Motion. 

7. The November 4, 2008 election is less than 30 days away. 

8. Without expedited consideration, Plaintiffs and other Michigan residents may 

suffer irreparable injury by having their right to vote abridged and/or denied. 

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9. Plaintiff AFSCME Council 25 is a labor union located within the State of 

Michigan, with over 65,000 members throughout the State of Michigan. 

10. The majority of Plaintiff’s members are qualified electors throughout the State of 

Michigan. 

11. Many of Plaintiff’s members are ethnic minorities, including, but not limited to 

African American, and Hispanic. 

12. Plaintiff, AFSCME Council 25 members have obtained buttons and shirts 

evidencing support for various issues and candidates, some of which will appear 

on the November 4, 2008 ballot. 

13. It is the intent of the members of Plaintiff, AFSCME Council 25 to wear the 

buttons and shirts, at the voting polls, while in line waiting to vote, and while 

voting. 

14. Plaintiff Catherine Phillips is an African American, resident of Wayne County 

Michigan, registered voter, and member of AFSCME Council 25. 

15. Plaintiff Charles Williams is an African American, resident of Wayne County 

Michigan, registered voter, and member of AFSCME Council 25. 

16. Both Plaintiffs Phillips and Williams intend to wear buttons and shirts that will 

evidence their support of particular issues and/or candidates, at the voting polls, 

while in line waiting to vote, and while voting on November 4, 2008. 

17. The wearing of buttons and shirts by the Plaintiffs is constitutionally protected 

speech, involving matters of public concern. 

18. Defendant Terri Lynn Land (Land) is the duly elected Michigan Secretary of 

State. 

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19. Defendant Land is sued in her official capacity as Secretary of State of the State 

of Michigan. 

20. Defendant Land’s official residence is the Treasury Building, 1st Floor, 430 West 

Allegan, Lansing, MI 48918. 

21. In her capacity as Secretary of State, Defendant Land is the chief election officer 

of the state and has supervisory control over local election officials. 

22. In accordance with MCL 168.31, the Michigan Secretary of State is charged with 

election duties inclusive of but not limited to: 

(a) Issue instructions and promulgate rules for the conduct of 

elections and registrations in accordance with the laws of this 

state. 

(b) Advise and direct local election officials as to the proper 

methods of conducting elections. 

(c) Publish and furnish for the use in each election precinct 

before each state primary and election a manual of instructions 

that includes specific instructions on assisting voters in casting 

their ballots, directions on the location of voting stations in 

polling places, procedures and forms for processing 

challenges, and procedures on prohibiting campaigning in the 

polling places. 

(d) Publish indexed pamphlet copies of the registration, 

primary, and election laws and furnish to the various county, 

city, township, and village clerks a sufficient number of copies 

for their own use and to enable them to include 1 copy with the 

election supplies furnished each precinct board of election 

inspectors under their respective jurisdictions. 

(e) Prescribe and require uniform forms, notices, and supplies 

the secretary of state considers advisable for use in the 

conduct of elections and registrations. 

(f) Establish a curriculum for comprehensive training and 

accreditation of all county, city, township, village, and school 

elections officials. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.23 Page 4 of 49
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(g) Establish and require attendance by all new appointed or 

elected election officials at an initial course of instruction within 

6 months before the date of the election. 

(h) Establish a comprehensive training curriculum for all 

precinct inspectors. 

23. Defendant Christopher M. Thomas (Thomas) is the Director of the Bureau of 

Elections. 

24. Defendant Thomas is sued in his official capacity as Director of Elections for the 

State of Michigan. 

25. Defendant Thomas’ official residence is the Treasury Building, 1st Floor, 430 

West Allegan, Lansing, MI 48918. 

26. Defendant Thomas is vested with the powers of the Secretary of State with 

respect to elections and is responsible for the supervision and administration of 

the election laws, under the supervision of the Secretary of State. 

27. The Bureau of Elections is a subdivision of the Michigan Secretary of State 

office.

28. Specifically, concerning the Bureau of Elections, MCL 168.32 states in part: 

There is hereby continued in the office of the secretary of state 

the bureau of elections created by Act No. 65 of the Public Acts 

of 1951, under the supervision of a director of elections, to be 

appointed by the secretary of state under civil service 

regulations. The director of elections shall be vested with the 

powers and shall perform the duties of the secretary of state 

under his supervision, with respect to the supervision and 

administration of the election laws. 

29. The claims set forth in this Complaint are brought against both Land and Thomas 

(collectively referred to as Defendants) in their official capacities. 

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30. MCL 168.744, delineates the following prohibited acts concerning any election 

within the State of Michigan: 

(1) An election inspector or any other person in the polling room 

or in a compartment connected to the polling room or within 

100 feet from any entrance to the building in which the polling 

place is located shall not persuade or endeavor to persuade a 

person to vote for or against any particular candidate or party 

ticket, or for or against any ballot question that is being voted 

on at the election. A person shall not place or distribute 

stickers, other than stickers provided by the election officials 

pursuant to law, in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(2) A person shall not solicit donations, gifts, contributions, 

purchase of tickets, or similar demands, or request or obtain 

signatures on petitions in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(3) On election day, a person shall not post, display, or 

distribute in a polling place, in any hallway used by voters to 

enter or exit a polling place, or within 100 feet of an entrance to 

a building in which a polling place is located any material that 

directly or indirectly makes reference to an election, a 

candidate, or a ballot question. This subsection does not apply 

to official material that is required by law to be posted, 

displayed, or distributed in a polling place on election day. 

(4) A person who violates this section is guilty of a 

misdemeanor. 

 

31. Within the Michigan Department of State, Bureau of Elections, Election Inspector 

Training Coordinator Accreditation Workshop Manual, the Defendants give the 

following directions to Election Inspectors: 

Election Inspectors have the right to ask voters entering the 

polls to remove campaign buttons or cover up clothing bearing 

a campaign slogan or a candidate’s name. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.25 Page 6 of 49
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*** 

If a person persists in violating any of the above restrictions, 

contact the clerk or, if necessary, local law enforcement 

authorities. See Exhibit 1. 

32. Based upon information and belief, Defendants have misinterpreted the 

prohibited acts as delineated in MCL 168.744 to prohibit the wearing of 

“campaign buttons, or clothing bearing a campaign slogan or a candidate’s 

name”.

33. In that the Defendants give Election Inspectors the arbitrary “right to ask voters 

[at their discretion] to remove campaign buttons or cover up clothing bearing a 

campaign slogan or candidate’s name”, the possibility exist that such authority 

will be used in a arbitrary, discriminatory and/or inconsistent manner, resulting in 

an abridgement and/or denial of Plaintiffs AFSCME Council 25 members, 

Phillips, Williams, and others similarly situated of the right to vote. 

34. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25 members, 

Phillips, Williams, and others similarly situated in that it intimidates, threatens or 

coerces persons for urging a person to vote, and intimidates, threatens or 

coerces persons for exercising powers and/or duties under the Voting Right Acts 

as amended, and the First, Fifth, Fourteenth, and Fifteenth Amendments to the 

Constitution. 

35. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25, Phillips, 

Williams, and others similarly situated in that it gives Election Inspectors the 

“right to [arbitrarily] ask voters entering the polls to remove campaign buttons or 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.26 Page 7 of 49
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cover up clothing bearing a campaign slogan or a candidate’s name;” and thus 

denies the Plaintiffs of the equal protection of the law. 

36. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25, Phillips, 

Williams, and others similarly situated in that it directs Election Inspectors to 

request law enforcement assistance to enforce the deprivation of the 

constitutional, civil, and voting rights of the Plaintiffs. 

37. Based upon information and belief, the directive given to Election Inspectors by 

the Defendants is as a result of the Defendants’ misinterpretation and/or 

misapplication of MCL 168.744.

38. Under these facts, there is an actual controversy between the parties, and a 

multiplicity of litigation will be avoided if all of these issues are determined by this 

court at one time. 

39. This court has jurisdiction to adjudicate the matters at issue and enter its 

judgment declaring the rights of all parties to this action. 

40. It is necessary for this court to adjudicate and declare the rights of the parties to 

this action to guide Plaintiffs’ future conduct and preserve their legal rights. 

WHEREFORE, Plaintiffs pray that: 

1. This Court declare that the Defendants’ interpretation and application of MCL 

168.744 as delineated in Defendants’ directive to Election Inspectors, as 

found in the Michigan Department of State, Bureau of Elections, Election 

Inspector Training Coordinator Accreditation Workshop Manual is in violation 

MCL 168.744, the Voting Right Acts (Title 42 USCS § 1971 and 42 USCS § 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.27 Page 8 of 49
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1973), the First, Fifth, Fourteenth and Fifteenth Amendments to the 

Constitution of the United States and therefore void. 

2. This Court issue preliminary and permanent injunctions enjoining Defendants, 

their agents, employees, successors and all persons in active concert and 

participation with them from enforcing, implementing or otherwise giving effect 

to the Defendants’ directive to Election Inspectors that; “Election Inspectors 

have the right to ask voters entering the polls to remove campaign buttons or 

cover up clothing bearing a campaign slogan or a candidate’s name. . . If a 

person persists in violating any of the above restrictions, contact the clerk or, 

if necessary, local law enforcement authorities”. 

3. That if the Court is not inclined to grant the requested relief on an ex parte 

preliminary basis, this Court immediately schedule this motion for hearing so 

that a permanent injunction may be obtained in accordance with the relief 

sought by the Plaintiffs.

4. This Court grant Plaintiffs such other and further relief as to the Court may 

deem just and proper, together with cost and attorney fees.

Date: 10/15/08 Respectfully submitted, 

 

/s/Herbert A. Sanders 

 The Sanders Law Firm, PC 

 Attorney for the Plaintiffs 

 635 Beaubien St 

 Detroit, MI 48226 

 (313) 962-0099 

 HASLAW@EARTHLINK.NET 

 P43031 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.28 Page 9 of 49
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 /s/Aina N. Watkins 

AFSCME Council 25

600 W Lafayette Blvd Ste 500 

Detroit, MI 48226 

(313) 964-1711 

awatkins@miafscme.org 

P69196

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

American Federation of State, 

County and Municipal Employees, 

Council 25, as an organization, and 

representative of its members, Case#

 Catherine Phillips, and Hon. Judge 

Charles Williams EXPIDITED CONSIDERATION

 REQUESTED 

Plaintiffs, 

 

V 

 

 Terri Lynn Land, 

Michigan Secretary of State, 

and Christopher M. Thomas, Director of 

Bureau of Elections, in their official capacities, 

Defendants.

______________________________________________________________________/ 

HERBERT A. SANDERS (P43031) Aina N. Watkins (P69196) 

THE SANDERS LAW FIRM, P.C. Staff Attorney 

Attorney for Plaintiffs Michigan AFSCME Council 25 

635 Beaubien Attorney for Plaintiffs AFSCME, 

Detroit, MI 48226 Phillips and Williams only 

Phone (313) 962-0099 600 W. Lafayette, Ste. 500 

Fax (313) 962-0044 Detroit, MI 48226 

 Phone (313) 964-1711 ext. 237 

Fax (313) 964-0230 

_____________________________________________________________________/ 

BRIEF IN SUPPORT OF PLAINTIFFS’ 

EX PARTE MOTION FOR DECLARATORY JUDGMENT, 

PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, 

AND EXPEDITED CONSIDERATION 

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TABLE OF CONTENTS 

Index of Authorities.........................................................................................iii 

Issues Presented............................................................................................2 

Jurisdiction...................................................................................................3 

Facts............................................................................................................4 

Standing.....................................................................................................10 

Standard of Review.......................................................................................11 

Argument....................................................................................................12 

A. Defendants Violate MCL 168.744 By Directing Election Inspectors ................12 

That They Have The Right To Ask Voters Entering The Polls To Remove 

Campaign Buttons Or Cover Up Clothing Bearing A Campaign Slogan Or 

A Candidate’s Name; And That If A Person Persists In Violating The 

Directive, The Election Inspector Should Contact The Clerk Or If 

Necessary, Local Law Enforcement Authorities. 

B. Defendants Violate U.S.C. § 1971 And 42 U.S.C. § 1973 By Directing............16 

Election Inspectors That They Have The Right To Ask Voters Entering 

The Polls To Remove Campaign Buttons Or Cover Up Clothing Bearing A 

Campaign Slogan Or A Candidate’s Name; And That If A Person Persists 

In Violating The Directive, The Election Inspector Should Contact The 

Clerk Or If Necessary, Local Law Enforcement Authorities. 

C. Defendants Violate Plaintiffs Rights Under The Constitution By.....................21 

Directing Election Inspectors That They Have The Right To Ask Voters 

Entering The Polls To Remove Campaign Buttons Or Cover Up Clothing 

Bearing A Campaign Slogan Or A Candidate’s Name; And That If A 

Person Persists In Violating The Directive, The Election Inspector Should 

Contact The Clerk Or If Necessary, Local Law Enforcement Authorities. 

1. Defendant’s Interpretation of MCL 168.744 is....................................21 

Unconstitutionally Overbroad. 

2. The wearing campaign buttons, or clothing bearing a ........................28 

campaign slogan or a candidate’s name is Symbolic Speech, 

protected by the Constitution. 

D. Plaintiffs’ Are Entitled To Injunctive Relief Where They Have........................29 

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A Likelihood Of Success On The Merits; They Will Likely Suffer 

Irreparable Harm If Defendants Continue To, Threaten And Coerces 

Persons For Exercising Their Voting Rights; The Balance Of The 

Hardships Weigh In Plaintiffs’ Favor, And The Impact Of The Injunction Is 

In The Public Interest. 

1. Plaintiff’s Have A Strong Likelihood of Success On The Merits of The 

Claim.................30 

2. Absent An Injunction The Plaintiff Will Suffer Irreparable 

Harm...................30 

3. The Balance of Hardships Favors Issuance of an Injunction................31 

4. The Public Interest Mandates a Grant of Injunctive Relief....................31 

Relief Requested..........................................................................................32 

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INDEX OF AUTHORITEIS 

Cases 

Adland v. Russ, 307 F.3d 471, 478 (6th Cir. Ky. 2002)..........................................10 

Allen v State Bd. of Elections (1969) 393 US 544..............................................4,17 

22 L Ed 2d 1, 89 S Ct 817 

Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103.......................................22-25 

S.Ct. 1564, 75 L.Ed.2d 547 (1983)). 

Anderson v. Spear, 356 F.3d 651, 661 (6th Cir. Ky. 2004).................................24-27 

Brooks v Nacrell 473 F.2d 955 (3rd Cir. 1973)......................................................3 

Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, .......................................................25 

46 L.Ed.2d 659 (1976), 

Burson v. Freeman, 504 U.S. 191, 211 (U.S. 1992).........................................22-24 

Bush, 531 U.S. at 109...................................................................................31 

DiBennedetto v. West Shore Hosp...............................................................12,15 

461 Mich 394, 402; 605 NW2d 300 (2000). 

Draprop Corp. v. Ann Arbor, 247 Mich App 410, 415; .......................................12,15 

636 NW2d 787 (2001). 

Gitlow v. New York, 268 U.S. 652, 666 (U.S. 1925)..............................................21 

Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)...................................................3 

Griffin, 570 F.2d at 1077-78.............................................................................20 

Hadnott v. Amos 394 U.S. at 364,.....................................................................20 

89 S.Ct. at 1104,22 L.Ed.2d at 341. 

Harman v. Forssenius, 1965, 380 U.S. 528, 537,.............................................19,31

85 S.Ct. 1177, 1183, 14 L.Ed.2d 50. 

Havens Realty Corp. v. Coleman,.................................................................... 11

455 US 363, 379 (1992). 

In re MCI Telecom Complaint, ....................................................................12,14

460 Mich 396, 411; 596 NW2d 164 (1999). 

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In Tinker v. Des Moines Indep. Cmty. Sch. Dist.,.................................................28 

393 U.S. 503, 505-506 (U.S. 1969) 

Joint Anti-Fascist Committee v. McGrath,...........................................................20 

341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 1951) 

Lujan v. Defenders of Wildlife, .........................................................................11

504 U.S. 555, 560-561 (U.S. 1992). 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., .......................................11

475 U.S. 574, 587 (1986). 

Mich. Educ. Ass'n v. Sec'y of State, ..................................................................15

2008 Mich. App. LEXIS 1760 (Mich. Ct. App. Aug. 28, 2008). 

Popma v. Auto Club Ins. Ass’n.,...................................................................12,15

446 Mich 460; 521 NW2d 831 (1994). 

Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, ......................................24, 31

12 L.Ed.2d 506 (1964)); 

Sandison v. Michigan High School Athletic Association., Inc., ................................29

64 F. 3d 1026, 1030 (6th Cir. 1995). 

SBC Mich. v. PSC (In re Complaint of Rovas), ...................................................15

482 Mich. 90 (Mich. 2008); 

Schneider v. State of New Jersey, Town of Irvington,...........................................24 

308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939). 

Schwier v. Cox, 340 F.3d 1284, 1294-97 (11th Cir. 2003)........................................3

South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966).......................................16

 

Summit County Democratic Cent. & Exec. Comm. v. Blackwell, .............................29

388 F.3d 547, 550 (6th Cir. Ohio 2004); 

Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001)..........................................12

Touchston v. McDermott, 234 F.3d 1133 (11th Cir. 2000)......................................31

United States v Charleston County (2003, DC SC) ..............................................11

316 F Supp 2d 268, affd (2004, CA4 SC) 365 F3d 341. 

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United States v Wood 295 F.2d 77 (5th Cir. 1961) ..............................................21

Yick Wo v. Hopkins, ....................................................................................19

1886, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220, 226. 

Statutes 

42 U.S.C. § 1971.....................................................................................2,3,18

42 U.S.C. § 1973......................................................................................2,3,19 

Act No. 65 of the Public Acts of 1951..................................................................7 

Fed. R. Civ. P. 56(c)..................................................................................11,19

Fed. R. Civ. P. 65..........................................................................................29

KRS § 117.235(3).....................................................................................23,25 

MCL 168.31...................................................................................................6

MCL 168.744........................................................2,3,7,8,11-15,18,22,26,27,30,32

The Civil Rights Act of 1957, 42 U.S.C.A. § 1971(b).............................................16

Title 28 USCS §§ 1343(3) and (4), 2201 and 2202, ...............................................3

Title 42 USCS 1983.........................................................................................3

U.S. Const., Amdt. 15, § 1...............................................................................16 

Voting Rights Act of 1965 § 2 (42 USCS § 1973) ......................................4,11,16,17

Other: 

Funk & Wagnalls New Comprehensive International ...........................................15 

Dictionary of the English Language (1971) 

http://quickfacts.census.gov/qfd/states/26/26163.html...................................................17 

http://www.aclupa.org/legal/legaldocket/passiveelectioneering.htm...............................27 

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I. ISSUES PRESENTED 

1. Whether Defendants violate MCL 168.744 by directing Election Inspectors that they 

have the right to ask voters entering the polls to remove campaign buttons or cover up 

clothing bearing a campaign slogan or a candidate’s name; and that if a person persists 

in violating the directive, the Election Inspector should contact the clerk or, if necessary, 

local law enforcement authorities? 

Plaintiffs Answers: Yes. 

Defendants Answer: No. 

2. Whether Defendants violate Plaintiffs’ rights under 42 U.S.C. § 1971 and 42 U.S.C. § 

1973 by directing Election Inspectors that they have the right to ask voters entering the 

polls to remove campaign buttons or cover up clothing bearing a campaign slogan or a 

candidate’s name; and that if a person persists in violating the directive, the Election 

Inspector should contact the clerk or, if necessary, local law enforcement authorities? 

Plaintiffs Answers: Yes. 

Defendants Answer: No. 

3. Whether Defendants violate Plaintiffs’ rights under the U.S. Constitution and its 

amendments by directing Election Inspectors that they have the right to ask voters 

entering the polls to remove campaign buttons or cover up clothing bearing a campaign 

slogan or a candidate’s name; and that if a person persists in violating the directive, the 

Election Inspector should contact the clerk or, if necessary, local law enforcement 

authorities? 

Plaintiffs Answers: Yes. 

Defendants Answer: No. 

4. Whether Plaintiffs are entitled to injunctive relief where they have a reasonable 

likelihood of success on the merits; they will likely suffer irreparable harm if Defendant 

continues to intimidate, threaten, and coerce persons for exercising their voting rights; 

the balance of the hardships weigh in Plaintiffs’ favor; and the impact of the injunction is 

in the public interest? 

Plaintiffs Answers: Yes. 

Defendants Answer: No. 

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II. JURISDICTION 

 This action arises under Voting Right Acts 42 U.S.C. § 1971, as amended, and 

42 USCS § 1973 as amended, the First, Fifth, Fourteenth and Fifteenth Amendments to 

the Constitution of the United States. It seeks a declaratory judgment that the 

Defendants’ interpretation and application of its interpretation of MCL 168.744 is in 

violation of MCL 168.744, 42 U.S.C. § 1971, as amended, 42 U.S.C. § 1973 as 

amended, the First, Fifth, Fourteenth and Fifteenth Amendments; and preliminary and 

permanent injunctions against the application and enforcement of Defendants’ 

interpretation of the Act. 

 Jurisdiction is conferred on this Court by Title 28 USCS §§ 1343(3) and (4), 2201 

and 2202, and by U.S.C. §§ 1971 (d) and 1973 (j)(f); and Title 42 USCS 1983. Private 

litigants may enforce their rights under 42 U.S.C. § 1971 and 42 USCS § 1973 by 

bringing a suit under 42 U.S.C. § 1983. See Schwier v. Cox, 340 F.3d 1284, 1294-97 

(11th Cir. 2003). 42 U.S.C. § 1983 authorizes suits for the deprivation of a right 

secured by the Constitution or the laws of United States caused by a person acting 

under the color of state law. When a statute confers an individual right, the right is 

presumptively enforceable by § 1983. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 

(2002); Brooks v Nacrell 473 F.2d 955 (3rd Cir. 1973) in which the court held that a 

private cause of action lies for violation of 42 U.S.C. § 1971. Specifically, § 1971(d)

states; "The district courts of the United States shall have jurisdiction of proceedings 

instituted pursuant to this section and shall exercise the same without regard to whether 

the party aggrieved shall have exhausted any administrative or other remedies that may 

be provided by law." Citizens are entitled to seek declaratory judgment when it is 

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alleged that a state has failed to comply with provisions of the Voting Rights Act of 

1965. Allen v State Bd. of Elections (1969) 393 US 544, 22 L Ed 2d 1, 89 S Ct 817.

II. FACTS 

1. Plaintiff AFSCME Council 25 is a labor union located within the State of 

Michigan, with over 90,000 members throughout the State of Michigan. 

2. Members are employed by cities, states, counties, hospitals, the federal 

government and non-profit agencies, and other private employers. 

3. The majority of Plaintiff’s members are qualified electors throughout the State of 

Michigan. 

4. Many of Plaintiff’s members are ethnic minorities, including, but not limited to 

African American, and Hispanic. 

5. AFSCME Council 25 engages in a mission inclusive of, but not limited to working 

for justice in the workplace, advocating for prosperity and opportunity for all of 

America’s working families, fighting for fairness at the bargaining table, at the 

ballot box and in the halls of government. 

6. Plaintiff, AFSCME Council 25 members have obtained buttons and shirts 

evidencing concern or support for various issues and expressing admiration for 

certain candidates that will appear on the November 4, 2008 ballot. See Exhibit 

4. 

7. Based upon information and belief, it is the intent of the members of AFSCME 

Council 25 to wear the buttons and shirts, at the voting polls, while in line waiting 

to vote, and while voting. 

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5 

8. Members of AFSCME Council 25 believe the wearing of buttons and shirts by the 

AFSCME Council 25 members is constitutionally protected speech, involving 

matters of public concern. 

9. AFSCME Council 25 is headquartered in Lansing, MI and has a regional office 

located at 600 W. Lafayette, Suite 500, Detroit, MI 48226. 

10. Plaintiff Catherine Phillips is an African American, resident of Wayne County 

Michigan, registered voter, and member of AFSCME Council 25. See Exhibit 5. 

11. Plaintiff Charles Williams is an African American, resident of Wayne County 

Michigan, registered voter, and member of AFSCME Council 25. See Exhibit 6. 

12. Both Plaintiffs Phillips and Williams intend to wear buttons and shirts that will 

evidence their support of particular issues and/or candidates, at the voting polls, 

while in line waiting to vote, and while voting on November 4, 2008. 

13. The wearing of buttons and shirts by the Plaintiffs is constitutionally protected 

speech, involving matters of public concern. 

14. Defendant Terri Lynn Land (Land) is the duly elected Michigan Secretary of 

State. 

15. Defendant Land is sued in her official capacity as Secretary of State of the State 

of Michigan. 

16. Defendant Land’s official residence is the Treasury Building, 1st Floor, 430 West 

Allegan, Lansing, MI 48918. 

17. In her capacity as Secretary of State, Defendant Land is the chief election officer 

of the state and has supervisory control over local election officials. 

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18. In accordance with MCL 168.31, the Michigan Secretary of State is charged with 

election duties inclusive of but not limited to: 

(a) Issue instructions and promulgate rules for the conduct of 

elections and registrations in accordance with the laws of this 

state. 

(b) Advise and direct local election officials as to the proper 

methods of conducting elections. 

(c) Publish and furnish for the use in each election precinct 

before each state primary and election a manual of instructions 

that includes specific instructions on assisting voters in casting 

their ballots, directions on the location of voting stations in 

polling places, procedures and forms for processing 

challenges, and procedures on prohibiting campaigning in the 

polling places. 

(d) Publish indexed pamphlet copies of the registration, 

primary, and election laws and furnish to the various county, 

city, township, and village clerks a sufficient number of copies 

for their own use and to enable them to include 1 copy with the 

election supplies furnished each precinct board of election 

inspectors under their respective jurisdictions. 

(e) Prescribe and require uniform forms, notices, and supplies 

the secretary of state considers advisable for use in the 

conduct of elections and registrations. 

(f) Establish a curriculum for comprehensive training and 

accreditation of all county, city, township, village, and school 

elections officials. 

(g) Establish and require attendance by all new appointed or 

elected election officials at an initial course of instruction within 

6 months before the date of the election. 

(h) Establish a comprehensive training curriculum for all 

precinct inspectors. 

19. Defendant Christopher M. Thomas (Thomas) is the Director of the Bureau of 

Elections. 

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20. Defendant Thomas is sued in his official capacity as Director of Elections for the 

State of Michigan. 

21. Defendant Thomas’ official residence is the Treasury Building, 1st Floor, 430 

West Allegan, Lansing, MI 48918. 

22. Defendant Thomas is vested with the powers of the Secretary of State with 

respect to elections and is responsible for the supervision and administration of 

the election laws, under the supervision of the Secretary of State. 

23. The Bureau of Elections is a subdivision of the Michigan Secretary of State 

office.

24. Specifically, concerning the Bureau of Elections, MCL 168.32 states in part: 

There is hereby continued in the office of the secretary of state 

the bureau of elections created by Act No. 65 of the Public Acts 

of 1951, under the supervision of a director of elections, to be 

appointed by the secretary of state under civil service 

regulations. The director of elections shall be vested with the 

powers and shall perform the duties of the secretary of state 

under his supervision, with respect to the supervision and 

administration of the election laws. 

25. The claims set forth in this Complaint are brought against both Land and Thomas 

(collectively referred to as Defendants) in their official capacities. 

26. MCL 168.744, delineates the following prohibited acts concerning any election 

within the State of Michigan: 

(1) An election inspector or any other person in the polling room 

or in a compartment connected to the polling room or within 

100 feet from any entrance to the building in which the polling 

place is located shall not persuade or endeavor to persuade a 

person to vote for or against any particular candidate or party 

ticket, or for or against any ballot question that is being voted 

on at the election. A person shall not place or distribute 

stickers, other than stickers provided by the election officials 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.41 Page 22 of 49
8 

pursuant to law, in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(2) A person shall not solicit donations, gifts, contributions, 

purchase of tickets, or similar demands, or request or obtain 

signatures on petitions in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(3) On election day, a person shall not post, display, or 

distribute in a polling place, in any hallway used by voters to 

enter or exit a polling place, or within 100 feet of an entrance to 

a building in which a polling place is located any material that 

directly or indirectly makes reference to an election, a 

candidate, or a ballot question. This subsection does not apply 

to official material that is required by law to be posted, 

displayed, or distributed in a polling place on election day. 

(4) A person who violates this section is guilty of a 

misdemeanor. 

27. Within the Michigan Department of State, Bureau of Elections, Election Inspector 

Training Coordinator Accreditation Workshop Manual, the Defendants give the 

following directions to Election Inspectors: 

Election Inspectors have the right to ask voters entering the 

polls to remove campaign buttons or cover up clothing bearing 

a campaign slogan or a candidate’s name. 

*** 

If a person persists in violating any of the above restrictions, 

contact the clerk or, if necessary, local law enforcement 

authorities. See Exhibit 1. 

28. Based upon information and belief, Defendants have misinterpreted the 

prohibited acts as delineated in MCL 168.744 to prohibit the wearing of 

“campaign buttons, or clothing bearing a campaign slogan or a candidate’s 

name”.

29. In that the Defendants give Election Inspectors the arbitrary “right to ask voters 

[at their discretion] to remove campaign buttons or cover up clothing bearing a 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.42 Page 23 of 49
9 

campaign slogan or candidate’s name”, the possibility exist that such authority 

will be used in a arbitrary, discriminatory and/or inconsistent manner, resulting in 

an abridgement and/or denial of Plaintiffs AFSCME Council 25, Phillips, Williams, 

and others similarly situated of the right to vote. 

30. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25, Phillips, 

Williams, and others similarly situated in that it intimidates, threatens or coerces 

persons for urging a person to vote, and intimidates, threatens or coerces 

persons for exercising powers and/or duties under the Voting Right Acts as 

amended, and the First, Fifth, Fourteenth, and Fifteenth Amendments to the 

Constitution. 

31. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25, Phillips, 

Williams, and others similarly situated in that it gives Election Inspectors the 

“right to [arbitrarily] ask voters entering the polls to remove campaign buttons or 

cover up clothing bearing a campaign slogan or a candidate’s name;” and thus 

denies the Plaintiffs the equal protection of the law. 

32. The directive given by the Defendants to Election Inspectors violates the 

constitutional, civil and voting rights of Plaintiffs AFSCME Council 25, Phillips, 

Williams, and others similarly situated in that it directs Election Inspectors to 

request law enforcement assistance to enforce the deprivation of the 

constitutional, civil, and voting rights of the Plaintiffs. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.43 Page 24 of 49
10 

33. Under these facts, there is an actual controversy between the parties, and a 

multiplicity of litigation will be avoided if all of these issues are determined by this 

court at one time. 

34. This court has jurisdiction to adjudicate the matters at issue and enter its 

judgment declaring the rights of all parties to this action. 

35. It is necessary for this court to adjudicate and declare the rights of the parties to 

this action to guide Plaintiffs’ future conduct and preserve their legal rights. 

36. Plaintiffs requests expedited consideration of their Motion. 

37. The November 4, 2008 election is less than 30 days away. 

38. Without expedited consideration, Plaintiffs and other Michigan residents may 

suffer irreparable injury by having their right to vote abridged and/or denied. 

III. STANDING 

An organization has standing to sue on behalf of its members when (a) its 

members otherwise have standing to sue in their own right; (b) the interests it seeks to 

protect are germane to the organization's purpose; and (c) neither the claim asserted 

nor the relief requested requires participation of individual members in the lawsuit. See 

Adland v. Russ, 307 F.3d 471, 478 (6th Cir. Ky. 2002). 

Further, a labor union has standing to bring an action on behalf of its members, 

when as in the case at bar, the union can show: 

First the plaintiff must have suffered an "injury in fact" -- an 

invasion of a legally protected interest which is (a) concrete 

and particularized and (b) "actual or imminent, not 

'conjectural' or 'hypothetical,'" Second, there must be a 

causal connection between the injury and the conduct 

complained of -- the injury has to be "fairly . . . trace[able] to 

the challenged action of the defendant, and not . . . the result 

[of] the independent action of some third party not before the 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.44 Page 25 of 49
11 

court." Third, it must be "likely," as opposed to merely 

"speculative," that the injury will be "redressed by a favorable 

decision." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-561 (U.S. 1992). 

The injury in fact in the case at bar is the frustration of the union’s mission. 

Havens Realty Corp. v. Coleman, 455 US 363, 379 (1992). There is a casual 

connection between the injury and the conduct complained of, in that the Defendants’ 

interpretation and application of their interpretation of MCL 168.744 is in violation of 

MCL 168.744, the voting, and constitutional rights of the Plaintiffs. Plaintiff AFSCME 

Council 25 and its members will have their right to vote abridged and/or denied because 

they choose to wear certain buttons or clothing. Plaintiffs AFSCME Council 25, Phillips, 

and Williams have suffered and will continue to suffer the abridging or denial of the right 

to vote in the November 2008 election. Based upon the argument as delineated supra, it 

is likely, and not merely speculative, that the injury suffered by the Plaintiffs will be 

redressed by a favorable decision. Private plaintiffs have standing to pursue their 

claims under § 2 (42 USCS § 1973) of Voting Rights Act of 1965 when they reside in an 

area directly affected by the allegedly illegal voting scheme. United States v Charleston 

County (2003, DC SC) 316 F Supp 2d 268, affd (2004, CA4 SC) 365 F3d 341. 

IV. STANDARD OF REVIEW 

Summary judgment is proper when "the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a motion for summary 

judgment the court must view the factual evidence and draw all reasonable inferences 

in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.45 Page 26 of 49
12 

475 U.S. 574, 587 (1986). "[T]he party opposing the motion may not rely solely on the 

pleadings and must adduce more than a mere scintilla of evidence; if the nonmoving 

party fails to make a sufficient showing on an essential element of the case with respect 

to which the nonmovant has the burden, the moving party is entitled to summary 

judgment as a matter of law." Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001). 

The primary goal of statutory interpretation is to give effect to the intent of the 

Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). 

This determination is accomplished by examining the plain language of the statute. Id. If 

the statutory language is unambiguous, courts presume that the Legislature intended 

the meaning plainly expressed and further judicial construction is neither permitted nor 

required. DiBennedetto v. West Shore Hosp., 461 Mich 394, 402; 605 NW2d 300 

(2000). Statutory language should be reasonably construed, keeping in mind the 

purpose of the statute. Draprop Corp. v. Ann Arbor, 247 Mich App 410, 415; 636 NW2d 

787 (2001). When statutory terms are undefined, a courts may consider dictionary 

definitions to determine common usage. Popma v. Auto Club Ins. Ass’n., 446 Mich 460; 

521 NW2d 831 (1994). 

V. ARGUMENT 

A. DEFENANTS VIOLATE MCL 168.744 BY DIRECTING ELECTION 

INSPECTORS THAT THEY HAVE THE RIGHT TO ASK VOTERS ENTERING 

THE POLLS TO REMOVE CAMPAIGN BUTTONS OR COVER UP CLOTHING 

BEARING A CAMPAIGN SLOGAN OR A CANDIDATE’S NAME; AND THAT IF 

A PERSON PERSISTS IN VIOLATING THE DIRECTIVE, THE ELECTION 

INSPECTOR SHOULD CONTACT THE CLERK OR IF NECESSARY, LOCAL 

LAW ENFORCEMENT AUTHORITIES. 

MCL 168.744, delineates the following prohibited acts concerning any election within 

the State of Michigan: 

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(1) An election inspector or any other person in the polling room 

or in a compartment connected to the polling room or within 

100 feet from any entrance to the building in which the polling 

place is located shall not persuade or endeavor to persuade a 

person to vote for or against any particular candidate or party 

ticket, or for or against any ballot question that is being voted 

on at the election. A person shall not place or distribute 

stickers, other than stickers provided by the election officials 

pursuant to law, in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(2) A person shall not solicit donations, gifts, contributions, 

purchase of tickets, or similar demands, or request or obtain 

signatures on petitions in the polling room or in a compartment 

connected to the polling room or within 100 feet from any 

entrance to the building in which the polling place is located. 

(3) On election day, a person shall not post, display, or 

distribute in a polling place, in any hallway used by voters to 

enter or exit a polling place, or within 100 feet of an entrance to 

a building in which a polling place is located any material that 

directly or indirectly makes reference to an election, a 

candidate, or a ballot question. This subsection does not apply 

to official material that is required by law to be posted, 

displayed, or distributed in a polling place on election day. 

(4) A person who violates this section is guilty of a 

misdemeanor. 

Based upon information and belief, Defendants have misinterpreted the 

prohibited acts, as delineated in MCL 168.744, to prohibit the wearing of “campaign 

buttons, or clothing bearing a campaign slogan or a candidate’s name”. Within the 

Michigan Department of State, Bureau of Elections, Election Inspector Training 

Coordinator Accreditation Workshop Manual, the Defendants give the following 

directions to Election Inspectors: 

Election Inspectors have the right to ask voters entering the 

polls to remove campaign buttons or cover up clothing bearing 

a campaign slogan or a candidate’s name. 

*** 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.47 Page 28 of 49
14 

If a person persists in violating any of the above restrictions, 

contact the clerk or, if necessary, local law enforcement 

authorities. See Exhibit 1. 

The directions given to the Election Inspectors is in violation of MCL 168.744 and 

breaches a duty owed to Plaintiffs to only prohibit the “persuading or endeavoring to 

persuade” a person to vote for or against a particular candidate or party ticket, or for or 

against a ballot question. MCL 168.744 does not prohibit the mere wearing of 

campaign buttons or clothing bearing a campaign slogan or a candidate’s name. In 

fact, no where within the statute are buttons or clothing mentioned. The simple wearing 

of campaign buttons or clothing bearing a campaign slogan or a candidate’s name does 

not constitute “persuading or endeavoring to persuade” a person to vote for or against a 

particular candidate or party ticket, or for or against a ballot question. 

Defendants have misinterpreted MCL 168.744 in that their directive conflicts with 

the plain meaning of the statute. Furthermore, the Michigan Supreme Court has held 

that agency interpretations of statutes “are not binding on courts and cannot 

conflict with the plain meaning of [a] statute. While the agency's interpretation 

may be helpful in ascertaining the legislative intent, courts may not abdicate to 

administrative agencies the constitutional responsibility to construe statutes. 

Giving uncritical deference to an administrative agency would be such an 

improper abdication of duty.” SBC Mich. v. PSC (In re Complaint of Rovas), 482 

Mich. 90 (Mich. 2008); See also Mich. Educ. Ass'n v. Sec'y of State, 2008 Mich. App. 

LEXIS 1760 (Mich. Ct. App. Aug. 28, 2008).

The primary goal of statutory interpretation is to give effect to the intent of the 

Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). 

This determination is accomplished by examining the plain language of the statute. Id. If 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.48 Page 29 of 49
15 

the statutory language is unambiguous, courts presume that the Legislature intended 

the meaning plainly expressed and further judicial construction is neither permitted nor 

required. DiBennedetto v. West Shore Hosp., 461 Mich 394, 402; 605 NW2d 300 

(2000). Statutory language should be reasonably construed, keeping in mind the 

purpose of the statute. Draprop Corp. v. Ann Arbor, 247 Mich App 410, 415; 636 NW2d 

787 (2001). Concerning MCL 168.744, the first paragraph of the statute clearly 

expresses the statues intent. The clear intent of the statute is to prevent the 

“persuading or endeavoring to persuade” a person to vote for or against any particular 

candidate or party ticket, or for or against any ballot question. Clearly, the simple 

wearing of a button or a shirt does not constitute “persuading or endeavoring to 

persuade”.

When statutory terms are undefined, a court may consider dictionary definitions to 

determine common usage. Popma v. Auto Club Ins. Ass’n., 446 Mich 460; 521 NW2d 

831 (1994). Funk & Wagnalls New Comprehensive International Dictionary of the 

English Language (1971) defines persuade as meaning “to move a person to do 

something by arguments, inducements, or pleas”. Additionally, endeavor is defined as 

meaning “earnest exertion for an end”. Clearly, the simple wearing of a button or 

shirt is not what is intended to be prohibited by MCL 168.744. Such acts do not 

constitute earnest exertion by arguments, inducements, or pleas, to move a 

person to do something or accomplish an end. 

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B. DEFENANTS VIOLATE U.S.C. § 1971 and 42 U.S.C. § 1973 BY DIRECTING 

ELECTION INSPECTORS THAT THEY HAVE THE RIGHT TO ASK VOTERS 

ENTERING THE POLLS TO REMOVE CAMPAIGN BUTTONS OR COVER UP 

CLOTHING BEARING A CAMPAIGN SLOGAN OR A CANDIDATE’S NAME; AND 

THAT IF A PERSON PERSISTS IN VILATING THE DIRECTIVE, THE ELECTION 

INSPECTOR SHOULD CONTACT THE CLERK OR IF NECESSARY, LOCAL LAW 

ENFORCEMENT AUTHORITIES. 

 The Civil Rights Act of 1957, 42 U.S.C.A. § 1971(b), provides:

No person, whether acting under color of law or otherwise, shall 

intimidate, threaten, coerce * * * any other person for the 

purpose of interfering with the right of such other person to vote 

or to vote as he may choose. 

 Section 1971 creates a cause of action in the United States for "preventive 

relief" where a person has intimidated or has attempted to intimidate another in the 

exercise of his right to vote1

. 

 Congress enacted the Voting Rights Act of 1965 for the broad remedial 

purpose of "rid[ding] the country of racial discrimination in voting." South Carolina v. 

Katzenbach, 383 U.S. 301, 315 (1966). The preamble to the Voting Rights Act of 1965

establishes that the central purpose of the Act is "[t]o enforce the fifteenth amendment 

to the Constitution of the United States." The Fifteenth Amendment provides: "The right 

of citizens of the United States to vote shall not be denied or abridged by the United 

States or by any State on account of race, color, or previous condition of servitude." 

U.S. Const., Amdt. 15, § 1. The Act should be interpreted in a manner that provides 

 

1 The affirmative defense of adequate state remedies has been specifically removed by 

statute, for subsection (d) expressly states that the district court is to exercise 

jurisdiction without regard to whether the aggrieved party shall have exhausted other 

remedies provided by law. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.50 Page 31 of 49
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"the broadest possible scope" in combating racial discrimination2. See Allen v. State 

Board of Elections, 393 U.S. 544, 567 (1969). 

Section 3 of the Voting Rights Act Amendments of 1982 provides:

Sec. 3(a) No voting qualification or prerequisite to voting or 

standard, practice, or procedure shall be imposed or applied by 

any State or political subdivision in a manner which results in a 

denial or abridgement of the right of any citizen of the United 

States to vote on account of race or color, or in contravention of 

the guarantees set forth in section 4(f)(2), as provided in 

subsection (b). 

(b) a violation of subsection (a) is established if, based on the 

totality of circumstances, it is shown that the political processes 

leading to nomination or election in the State or political 

subdivision are not equally open to participation by members of 

a class of citizens protected by subsection (a) in that its 

members have less opportunity than other members of the 

electorate to participate in the political process and to elect 

representatives of their choice. 

 The terms "vote" and "voting" were defined elsewhere in the Act to include "all 

action necessary to make a vote effective in any primary, special, or general election." § 

14(c)(1) of the Act, 79 Stat. 445. 

 In 1982, Congress amended § 2 of the Voting Rights Act to make clear that 

certain practices and procedures that result in the denial or abridgement of the right to 

vote are forbidden even though the absence of proof of discriminatory intent protects 

them from constitutional challenge. Under the amended statute, proof of intent is no 

longer required to prove a § 2 violation. Now plaintiffs can prevail under § 2 by 

demonstrating that a challenged election practice has resulted in the denial or 

 

2

 Wayne County, Michigan ethnic population 41.8% Black, 0.4% American Indian, 2.4% 

Asian, 4.7% Hispanic, and 49.8% White 

http://quickfacts.census.gov/qfd/states/26/26163.html 

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18 

abridgement of the right to vote. Congress not only incorporated the results test in the 

paragraph that formerly constituted the entire § 2, but also designated that paragraph as 

subsection (a) and added a new subsection (b) to make clear that an application of the 

results test requires an inquiry into "the totality of the circumstances." 

In the case at bar, based upon information and belief, Defendants have 

misinterpreted the prohibited acts as delineated in MCL 168.744 to prohibit the wearing 

of “campaign buttons, or clothing bearing a campaign slogan or a candidate’s name”. 

Within the Michigan Department of State, Bureau of Elections, Election Inspector 

Training Coordinator Accreditation Workshop Manual, the Defendants give the following 

directions to Election Inspectors: 

Election Inspectors have the right to ask voters entering the 

polls to remove campaign buttons or cover up clothing bearing 

a campaign slogan or a candidate’s name. 

*** 

If a person persists in violating any of the above restrictions, 

contact the clerk or, if necessary, local law enforcement 

authorities. See Exhibit 1. 

Per the directive, Election Inspectors have the arbitrary “right to ask voters [at their 

discretion] to remove campaign buttons or cover up clothing bearing a campaign slogan 

or candidate’s name”. Clearly, the possibility exist that such broad authority will be used 

in a arbitrary, discriminatory and/or inconsistent manner, resulting in an abridgement 

and/or denial of Plaintiffs AFSCME Council 25 members, Phillips, Williams, and others 

similarly situated of the right to vote. Additionally, the sworn testimony of Plaintiffs 

Phillips and Williams indicates that they feel intimidated, threatened and coerced by the 

directive given to the Election Inspectors. Clearly, to suggest that law enforcement will 

be utilized to effectuate the Defendants arbitrarily instituted dress code on election day, 

is an act of intimidation in violation of 42 U.S.C. § 1971. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.52 Page 33 of 49
19 

 The Court can take judicial notice of the fact that thousands of first time voters 

will participate in the November 4, 2008 election. Many of those new voters, as well as 

the Plaintiffs will express their enthusiasm for participation in the election process by 

wearing buttons and shirts which evidence issues of concern, issues they support, and 

candidates they admire. They should not have their right to vote abridged or denied 

because of what they choose to wear to the polls on election day. The policy of the 

Defendants as delineate above constitutes the imposition of a “qualification or 

prerequisite to voting, or standard, practice, or procedure in violation” of 42 U.S.C. § 

1973. 

 The right to vote on an equal basis with other citizens is a fundamental right in 

a free society; indeed, in any viable form of representative government. It is 

preservative of all governmental rights. See Yick Wo v. Hopkins, 1886, 118 U.S. 356, 

370, 6 S.Ct. 1064, 30 L.Ed. 220, 226. "The right to vote freely for the candidate of 

one's choice is of the essence of a democratic society, and any restrictions on 

that right strike at the heart of representative government." See Harman v. 

Forssenius, 1965, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50.

 There is no assurance that the directive given to the Election Inspectors will be 

applied equally throughout the State of Michigan. Particularly inconsideration of the fact 

that the directive requires each Election Inspector to subjectively observe and judge 

every printed button or shirt worn to the polls to determine whether the button or shirt 

has a “campaign” message. It is inevitable that such a daunting task will result in unfair, 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.53 Page 34 of 49
20 

biased, discriminatory results3. Unequal application of the same law to different 

individuals has an especially invidious connotation. Hadnott v. Amos 394 U.S. at 364, 

89 S.Ct. at 1104,22 L.Ed.2d at 341. Any abridgement of the opportunity of members of 

a protected class to participate in the political process inevitably impairs their ability to 

influence the outcome of an election.

 Though it is recognized that the administration of elections is generally a matter 

of state concern, federal courts have properly intervened when the attack was, broadly, 

upon the fairness of the official terms and procedures under which the election was 

conducted. The federal courts should not be asked to count and validate ballots and 

enter into the details of the administration of the election. However, “when confronted 

with an officially-sponsored election procedure which, in its basic aspect, is flawed, a 

federal judge need not be timid, but may and should do what common sense and justice 

require”. See Griffin, 570 F.2d at 1077-78 (quoting Joint Anti-Fascist Committee v. 

McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 1951) (Frankfurter, J., concurring). 

 In the case at bar, the “totality of the circumstances” suggest that the 

fundamental fairness of the November 4, 2008 election is in question. As described 

above, an “officially-sponsored election procedure in its basic aspect is flawed”. 

Fundamental fairness demands that the Plaintiffs be granted the injunctive relief they 

 

3 The ambiguity of MCL 168.744, and the arbitrariness of its enforcement is bolstered by 

the Detroit City Clerk’s Response to the Directive given Election Inspectors. The Clerk 

directed her staff that; “Detroit Voters...will be asked to remove a button or shirt 

displaying materials that make reference to a candidate”. See Exhibit 2. Yet, in the 

news letter which the Clerk sent to Detroit voters concerning the upcoming election, she 

makes no mention of the statute, the interpretation of the statute requiring the removal 

of buttons, or covering shirts, or how it will be implemented and enforced on Election 

Day. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.54 Page 35 of 49
21 

seek in order to protect their rights, and others similarly situated. In the case of United 

States v Wood 295 F.2d 77 (5th Cir. 1961), the Court stated:

Whenever any person interferes with the right of any other 

person to vote or to vote as he may choose, he acts like a 

political termite to destroy a part of that foundation. A single 

termite or many termites may pass unnoticed, but each 

damages the foundation, and if that process is allowed to 

continue the whole structure may crumble and fall even before 

the occupants become aware of their peril. Eradication of 

political termites, or at least checking their activities, is 

necessary to prevent irreparable damage to our Government. 

C. DEFENANTS VIOLATE PLAINTIFFS RIGHTS UNDER THE 

CONSTITUTION BY DIRECTING ELECTION INSPECTORS THAT THEY 

HAVE THE RIGHT TO ASK VOTERS ENTERING THE POLLS TO 

REMOVE CAMPAIGN BUTTONS OR COVER UP CLOTHING BEARING 

A CAMPAIGN SLOGAN OR A CANDIDATE’S NAME; AND THAT IF A 

PERSON PERSISTS IN VIOLATING THE DIRECTIVE, THE ELECTION 

INSPECTOR SHOULD CONTACT THE CLERK OR IF NECESSARY, 

LOCAL LAW ENFORCEMENT AUTHORITIES. 

“[F]reedom of speech and of the press – which are protected by the First 

Amendment from abridgment by Congress -- are among the fundamental personal 

rights and "liberties" protected by the due process clauses of the Fifth and Fourteenth 

Amendments from impairment by the States.” Gitlow v New York, 268 U.S. 652, 666 

(U.S. 1925). 

The First, Fifth and Fourteenth Amendments state that: 

Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof; or abridging 

the freedom of speech, or of the press; or the right of the 

people peaceably to assemble, and to petition the Government 

for a redress of grievances. 

USCS Const. Amend. 1 

No person shall be ....deprived of life, liberty, or property, 

without due process of law... 

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USCS Const. Amend. 5 

 

All persons born or naturalized in the United States, and 

subject to the jurisdiction thereof, are citizens of the United 

States and of the State wherein they reside. No State shall 

make or enforce any law which shall abridge the privileges or 

immunities of citizens of the United States; nor shall any State 

deprive any person of life, liberty, or property, without due 

process of law; nor deny to any person within its 

jurisdiction the equal protection of the laws. 

USCS Const. Amend. 14, § 1 

1. Defendant’s interpretation of MCL 168.744 is unconstitutionally 

overbroad. 

Defendants’ restriction on the wearing of campaign buttons or clothing bearing a 

campaign slogan or a candidate’s name will result in the suppression of free speech 

and abridge the right to cast a ballot. The Defendants’ interpretation and application of 

MCL 168.744 is overbroad and reaches both protected and unprotected expression. 

Defendant’s interpretation creates a conflict between two fundamental rights, the 

exercise of free speech and the right to cast a ballot in an election free from intimidation 

and fraud. 

In the case of Burson v. Freeman, 504 U.S. 191, 211 (U.S. 1992), the Supreme 

Court held that a 100 foot buffer-zone surrounding polling places was constitutional. 

Burson permitted states to create buffer zones for the “(1) the prevention of voter 

intimidation and (2) the prevention of corruption.” However, “the Burson Court refused 

to provide a bright-line rule as to how far the State could regulate speech around a poll.” 

Id. at 657. 

In the case of Anderson v. Spear, 356 F.3d 651, 661 (6th Cir. Ky. 2004), the 

court concluded that the 500 ft buffer zone surrounding polls in Kentucky was facially 

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23 

overbroad using the “significant impingement test” set out in Burson. Id. The test 

applies a requirement of narrow tailoring “which gives deference to a state regulation so 

long as it is reasonable and does not “significantly impinge on constitutionally protected 

rights.” Id. 

In Anderson, the issue before the Court was whether Kentucky’s restriction on 

electioneering within 500 feet of a polling place was unconstitutionally overbroad. The 

Kentucky legislature prohibited campaign activities near polling places on the date of an 

election: 

"No person shall, on the day of any election . . . do any 

electioneering at the polling place or within a distance of five 

hundred (500) feet of a county clerk's office or any entrance to 

a building in which a voting machine is located. . . ." KRS§ 

117.235(3). 

Appellant Anderson brought a two-pronged challenge to the statute, alleging first 

that the 500-foot buffer zone was generally overbroad in violation of the First 

Amendment, and second that the definition of electioneering was unconstitutionally 

overbroad because it included political speech that did not expressly advocate the 

election or defeat of candidates for public office. 

The 6th Circuit Court in Anderson stated that Burson requires the application of 

exacting scrutiny to restrictions on political speech around polling places4

. The 

Supreme Court adopted a modified "burden of proof" in cases in which exercise of a 

First Amendment right threatens to interfere with the act of voting itself. Id. at 209 n. 11,

112 S.Ct. 1846. Under this modified burden, the state must demonstrate that its 

 

4 Burson, 504 U.S. at 198, 112 S.Ct. 1846 noting that to survive review, a statute must 

be necessary to serve a compelling state interest and narrowly drawn to achieve that 

end. 

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response is "reasonable and does not significantly impinge on constitutionally 

protected rights." Id. at 209, 112 S.Ct. 1846. 

The 6th Circuit Court in Anderson stated that in applying this standard, the Burson 

Court recognized two compelling interests for buffer zones around polling places: 1) the 

state's duty to protect "the right to vote freely for the candidate of one's choice," id. at 

199, 112 S.Ct. 1846 (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 

L.Ed.2d 506 (1964)); and 2) the state's interest in preserving "the integrity and reliability 

of the electoral process itself," id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 

n. 9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). Put more succinctly, the Court recognized 

the states' interest in preventing voter intimidation and election fraud. Burson, 504 U.S. 

at 206, 112 S.Ct. 1846. 

Applying the Burson "significant impingement" test, the 6th Circuit Court 

concluded that the 500-foot buffer zone was facially overbroad. The 6th Circuit Court 

stated: 

It thus appears that Kentucky, to the extent possible, 

sought to eliminate all electioneering on election day. This 

Burson simply does not permit.. . .The Supreme Court has 

long recognized that "[m]ere legislative preferences or 

beliefs respecting matters of public convenience may well 

support regulation directed at other personal activities, but 

be insufficient to justify such as diminishes the [First 

Amendment] rights so vital to the maintenance of 

democratic institutions." Schneider v. State of New Jersey, 

Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 

155 (1939). 

The 6th Circuit also addressed Appellant Anderson’s claim that the 500-foot 

barrier’s restriction on "electioneering" was overbroad, in that it captured more 

constitutionally protected speech than was necessary to promote the State's interest. 

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The 500-foot buffer zone prescribed by Kentucky law applies to “electioneering”, which 

is defined to include: 

the displaying of signs, the distribution of campaign literature, 

cards, or handbills, the soliciting of signatures to any petition, or 

the solicitation of votes for or against any candidate or question 

on the ballot in any manner, but shall not include exit polling. 

KRS § 117.235(3). 

Counsel for the Kentucky State Board of Elections informed Mr. Anderson that 

distributing instructions to voters on how to cast write-in votes "would be considered 

`electioneering' and, therefore would be subject to the restrictions of KRS § 117.235”.

Mr. Anderson challenged the buffer zone as overbroad based on the content proscribed 

by the definition of electioneering. Specifically, Anderson suggested that buffer zones 

should be applied only to "express advocacy," and not to "issue advocacy." 

In the case of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), 

the Supreme Court defined “express advocacy”, as words such as vote for, elect, 

support, cast your ballot for, Smith for Congress, vote against, defeat, and reject. Id. at 

83-84, 96 S.Ct. 612; see also Buckley, 424 U.S. at 44 & n. 52, 96 S.Ct. 612. By offering 

a narrowing construction, the Supreme Court interpreted the statute so as to avoid 

sweeping in more protected speech than is necessary to prevent corruption. 

The 6th Circuit Court stated concerning Kentucky’s broad prohibition on 

“electioneering”: 

Kentucky's statute is vague, sweeping in, inter alia, "the 

displaying of signs, the distribution of campaign literature, 

cards, or handbills. . . ." KRS 117.235(3). While this language 

could be interpreted as limited to express advocacy, the 

Kentucky State Board of Elections has chosen a broader 

— indeed an overbroad — interpretation of the statute in 

finding that instructions on how to cast an absentee ballot 

constitute electioneering. Also, the record here is devoid of 

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26 

evidence that such a broad definition is necessary to 

achieve the State's interest in preventing corruption. . . 

Accordingly, because Kentucky's statute is vague and because 

the State has failed to provide any evidentiary support for 

regulating both express and issue advocacy, we find that this 

Court should apply a limiting construction. . . . Prophylactic 

restriction which extends to issue advocacy— that is, 

protected speech which does not directly seek to elect or 

oppose specific candidates — cannot be maintained 

unless the state demonstrates that the limitation was 

necessary to prevent intimidation and election fraud.. . . It 

would also appear that individuals would be prohibited from 

displaying signs or distributing leaflets which fall into core issue 

advocacy: that is, promoting issues rather than specific 

candidates. If "electioneering" includes Mr. Anderson's 

instructing voters on how to cast a write-in vote, does it also 

include, for example, parents urging voters to "support our 

schools"? All issue-related speech is chilled by the Board's 

interpretation of "electioneering." However, the State has 

failed to provide evidence to support a finding either that a 

regulation so broad is necessary to prevent corruption and 

voter intimidation, or that the regulation does not 

significantly impinge on the rights protected by the First 

Amendment. . . Accordingly, because the statute is 

overbroad in that it prohibits speech . . . absent a 

narrowing construction it prohibits more speech than is 

necessary to meet the State's protected interest. . . . 

As in Anderson, the Michigan statute abridges speech protected by the First 

Amendment. The Michigan statute is overbroad in that it prohibits both “express 

advocacy” and “issue advocacy”, as did the Kentucky statute. Defendants’ interpretation 

of the Michigan statute effectively eliminates all types electioneering speech on Election 

Day, as did the defendants’ interpretation of the Kentucky statue in the Anderson case. 

Defendants’ interpretation of MCL 168.744 is unreasonable and “significantly impinges 

on Plaintiff’s constitutionally protected rights” of exercising free speech and the right to 

vote. The wearing of political paraphernalia is constitutionally protected symbolic 

speech. By way of example it appears that the Michigan law would prohibit the wearing 

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of buttons or shirts that simply state: “It’s Time For Change”; “End The War Now”; or “I 

Favor Pro-Choice”. Such speech could be interpreted as “directly or indirectly mak[ing] 

reference to an election, a candidate, or a ballot question”, and thus a violation of 

Michigan law. Such a broad sweeping restraint on free speech is clearly a violation of 

constitutionally protected rights. Moreover, arbitrary, biased, and discriminatory 

interpretations by Election Inspectors is inevitable. 

Furthermore, Plaintiffs’ intent in the case at bar is not to taint the election nor commit 

fraud on November 4, 2008. Defendants’ interpretation of the statue in question will 

clearly prevent the exercise of free speech and abridge the rights of registered voters to 

cast their ballot.5

 The simple wearing of a button or shirt does not constitute “express 

advocacy” or the “endeavor[ing] to persuade a person to vote for or against any 

particular candidate.” In order for an act to constitute “express advocacy” it must go 

beyond the mere displaying of a photo or a slogan on a button or a shirt; there must be 

earnest exertion by arguments, inducements, or pleas, to move a person to do 

something or accomplish an end. Clearly, the Defendants’ interpretation of MCL 

168.744 is overbroad, and goes beyond protecting any legitimate interest the State may 

have in protecting voters. 

 

5

 “In early September 2008, two Allegheny County elections officials sued Pennsylvania 

election officials claiming that an advisory to County Boards of Election issued in early 

September was "illegal." The lawsuit claims that allowing partisan messages on voters' 

clothing would "affect the health and safety of voters." 

http://www.aclupa.org/legal/legaldocket/passiveelectioneering.htm This lawsuit arose 

after the ACLU received complaints from voters who were deprived from voting in the 

April 2008 primary for wearing t-shirts endorsing candidates. 

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2. The wearing of campaign buttons, or clothing bearing a campaign 

slogan or a candidate’s name is Symbolic Speech, protected by the 

Constitution. 

The wearing of campaign buttons, or clothing bearing a campaign slogan or a 

candidate’s name is a symbolic act. In Tinker v. Des Moines Indep. Cmty. Sch. Dist., 

393 U.S. 503, 505-506 (U.S. 1969), the Court held that “wearing of an armband for the 

purpose of expressing certain views is the type of symbolic act that is within the Free 

Speech Clause of the First Amendment”. Further the Court reasoned that the wearing of 

armbands in the circumstances of this case was entirely divorced from actually or 

potentially disruptive conduct by those participating in it. It was closely akin to "pure 

speech" which, has been repeatedly held, entitled to comprehensive protection under 

the First Amendment. Id. In Tinker, students were expelled from school when they wore 

black armbands in silent protest of the Vietnam War. 

Like the case at bar, wearing armbands and campaign paraphernalia are 

synonymous. Plaintiffs will be wearing paraphernalia expressing certain views symbolic 

of an act within the Free Speech Clause of the First Amendment. Plaintiffs like others 

similarly situated will not participate in disruptive conduct, intimidation or voter fraud 

while wearing buttons and shirts expressive of their feelings, admirations, and dislikes. 

Plaintiffs will silently cast votes with no intention of displaying disruptive conduct which 

would lead to intimidation or fraud. Therefore, the Defendant’s have no need to ask 

Plaintiff’s to remove buttons or shirts when entering polling locations and casting votes. 

To follow this directive would be a violation of Plaintiffs freedom of (symbolic) speech. 

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D. PLAINTIFFS’ ARE ENTITLED TO INJUNCTIVE RELIEF WHERE THEY HAVE 

A LIKELIHOOD OF SUCCESS ON THE MERITS; THEY WILL LIKELY 

SUFFER IREPARABLE HARM IF DFENDANTS CONTINUE TO, THREATEN 

AND COERCES PERSONS FOR EXERCISING THEIR VOTING RIGHTS; THE 

BALANCE OF THE HARDSHIPS WEIGH IN PLAINTIFFS’ FAVOR, AND THE 

IMPACT OF THE INJUNCTION IS IN THE PUBLIC INTEREST. 

Under the facts as delineated herein, there is an actual controversy between the 

parties, and a multiplicity of litigation will be avoided if all of these issues are determined 

by this court at one time. This court has jurisdiction to adjudicate the matters at issue 

and enter its judgment declaring the rights of all parties to this action. It is necessary for 

this court to adjudicate and declare the rights of the parties to this action to guide 

Plaintiffs’ future conduct and preserve their legal rights. Plaintiffs have requested 

expedited consideration of this Motion, in that the November 4, 2008 election is less 

than 30 days away. Without expedited consideration, and the issuance of a temporary 

and ultimately permanent restraining order, Plaintiffs and other Michigan residents will 

suffer irreparable injury by having their right to vote abridged and/or denied. 

The factors to be considered in determining whether to issue a temporary restraining 

order or a preliminary injunction under FRCP 65 are: 

(1) whether the movant has a 'strong' likelihood of success 

on the merits; (2) whether the movant would otherwise 

suffer irreparable injury; (3) whether issuance of a 

preliminary injunction would cause substantial harm to 

others; and (4) whether the public interest would be 

served by issuance of a preliminary injunction6

. 

 

6 See Summit County Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 550 

(6th Cir. Ohio 2004); Sandison v. Michigan High School Athletic Association., Inc., 64 F. 

3d 1026, 1030 (6th Cir. 1995). The Court in Sandison emphasized that the four factors 

are not prerequisites that must be satisfied. These factors simply guide the discretion of 

the court; they are meant not to be rigid and unbending requirements.

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1. Plaintiffs Have a Strong Likelihood of Success on the Merits of The Claims 

The directions given to the Election Inspectors is in violation of MCL 168.744 and 

breaches a duty owed to Plaintiffs to only prohibit the “persuading or endeavoring to 

persuade” a person to vote for or against a particular candidate or party ticket, or for or 

against a ballot question. Clearly, the simple wearing of a button or shirt is not what is 

intended to be prohibited by MCL 168.744. Such acts do not constitute earnest exertion 

by arguments, inducements, or pleas, to move a person to do something or accomplish 

an end. 

Because Election Inspectors have the arbitrary “right to ask voters [at their 

discretion] to remove campaign buttons or cover up clothing bearing a campaign slogan 

or candidate’s name,” the possibility exist that such broad authority will be used in a 

arbitrary, discriminatory and/or inconsistent manner, resulting in an abridgement and/or 

denial of Plaintiffs AFSCME Council 25 members, Phillips, Williams, and others similarly 

situated of the right to vote. 

2. Absent An Injunction the Plaintiffs Will Suffer Irreparable Harm. 

 Plaintiffs will be immediately and irreparably harmed if the requested injunctive 

relief is not provided. The right to vote is a fundamental right of our society. Because 

Election Inspectors have the arbitrary “right to ask voters [at their discretion] to remove 

campaign buttons or cover up clothing bearing a campaign slogan or candidate’s 

name,” the possibility exist that such broad authority will be used in a arbitrary, 

discriminatory and/or inconsistent manner, resulting in an abridgement and/or denial of 

Plaintiffs AFSCME Council 25 members, Phillips, Williams, and others similarly situated 

of the right to vote. 

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.64 Page 45 of 49
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 "The right to vote freely for the candidate of one's choice is of the essence of a 

democratic society, and any restrictions on that right strike at the heart of representative 

government." See Harman v. Forssenius, 1965, 380 U.S. 528, 537, 85 S.Ct. 1177, 

1183, 14 L.Ed.2d 50. It has been repeatedly recognized that all qualified voters have a 

constitutionally protected right to vote, and to have their votes counted.” See Reynolds 

v. Sims, 377 U.S. 533, 554-55 (1964). The violation of a citizen’s right to vote is the 

quintessential injury justifying an injunction. See Touchston v. McDermott, 234 F.3d 

1133 (11th Cir. 2000). 

3. The Balance of Hardships Favors Issuance of an Injunction 

As discussed infra, the harm to Plaintiffs is substantial, if the requested relief is not 

granted. A number voters will be potentially disfranchised because of what they choose 

to wear to the voting polls on election day. On the other hand, equitable relief will not 

impose any significant costs on the Defendants, or cause the Defendants any significant 

harm. 

4. The Public Interest Mandates a Grant of Injunctive Relief 

The public interest demands that every qualified resident of Michigan be allowed to 

cast their vote free from intimidation, threat or coercion. Protecting an individual’s right 

to vote is without question in the public interest, as is removing the undue burdens on 

that right imposed by the state7

. Federal courts have properly intervened when as in 

the case at bar, the attack was broadly upon the fairness of the official terms and 

procedures under which an election is to be conducted. 

 

7 Bush, 531 U.S. at 109 stating that the public interest is always served when citizens 

can look with confidence at an election process that insures that all votes cast by 

qualified voters are counted.

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VI. RELIEF REQUESTED 

WHEREFORE, Plaintiffs pray that: 

5. This Court issue an order declaring that the Defendants’ interpretation and 

application of MCL 168.744 as delineated in Defendants’ directive to Election 

Inspectors, as found in the Michigan Department of State, Bureau of 

Elections, Election Inspector Training Coordinator Accreditation Workshop 

Manual is in violation MCL 168.744, the Voting Right Acts (Title 42 USCS § 

1971 and 42 USCS § 1973), the First, Fifth, Fourteenth and Fifteenth 

Amendments to the Constitution of the United States and therefore void. 

6. This Court issue preliminary and permanent injunctions enjoining Defendants, 

their agents, employees, successors and all persons in active concert and 

participation with them from enforcing, implementing or otherwise giving effect 

to the Defendants’ directive to Election Inspectors that; “Election Inspectors 

have the right to ask voters entering the polls to remove campaign buttons or 

cover up clothing bearing a campaign slogan or a candidate’s name. . . If a 

person persists in violating any of the above restrictions, contact the clerk or, 

if necessary, local law enforcement authorities”. 

7. That if the Court is not inclined to grant the requested relief on an ex parte 

preliminary basis, this Court immediately schedule this motion for hearing so 

that a permanent injunction may be obtained in accordance with the relief 

sought by the Plaintiffs.

8. This Court grant Plaintiffs such other and further relief as to the Court may 

deem just and proper, together with cost and attorney fees.

Case 2:08-cv-14370-PJD-SDP ECF No. 3 filed 10/15/08 PageID.66 Page 47 of 49
33 

Date: 10/15/08 Respectfully submitted, 

 

/s/Herbert A. Sanders 

 The Sanders Law Firm, PC 

 Attorney for the Plaintiffs 

 635 Beaubien St 

 Detroit, MI 48226 

 (313) 962-0099 

 HASLAW@EARTHLINK.NET 

 P43031 

 /s/Aina N. Watkins 

AFSCME Council 25

600 W Lafayette Blvd Ste 500 

Detroit, MI 48226 

(313) 964-1711 

awatkins@miafscme.org 

P69196

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34 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

American Federation of State, 

County and Municipal Employees, 

Council 25, as an organization, and 

representative of its members, Case# 

Catherine Phillips, and Judge: 

Charles Williams EXPIDITED CONSIDERATION

 REQUESTED 

Plaintiffs, 

 

V 

 

 Terri Lynn Land, 

Michigan Secretary of State, 

and Christopher M. Thomas, Director of 

Bureau of Elections, in their official capacities, 

Defendants.

______________________________________________________________________/ 

HERBERT A. SANDERS (P43031) Aina N. Watkins (P69196) 

THE SANDERS LAW FIRM, P.C. Staff Attorney 

Attorney for Plaintiffs Michigan AFSCME Council 25 

635 Beaubien Attorney for Plaintiff AFSCME 

Detroit, MI 48226 only 

Phone (313) 962-0099 600 W. Lafayette, Ste. 500 

Fax (313) 962-0044 Detroit, MI 48226 

 Phone (313) 964-1711 ext. 237 

Fax (313) 964-0230 

_____________________________________________________________________/ 

CERTIFICATE OF SERVICE 

 The undersigned certifies that a copy of Plaintiffs’ Ex Parte Motion For 

Declaratory Judgment, Preliminary Injunction, Permanent Injunction, And Expedited 

Consideration, and Brief in Support were electronically filed on October 15, 2008 

Date: 10/15/08 /s/_____________________________ 

 Shamecki McCoy 

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