RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0274p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH TANNIRU KISHORE; NORISSA SANTA CRUZ,

Plaintiffs-Appellants,

v.

GRETCHEN WHITMER; JOCELYN BENSON; JONATHAN 

BRATER,

Defendants-Appellees.

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No. 20-1661

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:20-cv-11605—Sean F. Cox, District Judge.

Decided and Filed: August 24, 2020

Before: BOGGS, BUSH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Eric Lee, Oak Park, Michigan, for Appellants. Heather S. Meingast, Erik A. Grill, 

OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Defendants.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Joseph Tanniru Kishore and Norissa Santa Cruz seek to 

have their names placed on the Michigan ballot as candidates for president and vice president, 

respectively, without complying with the State’s ballot-access laws. They contend that the 

ballot-access requirements, as applied, are unconstitutionally burdensome under the First and 

Fourteenth Amendments to the United States Constitution when enforced alongside Michigan’s 

>
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 2

orders restricting in-person gatherings during the COVID-19 pandemic. Given binding 

precedent and measures taken by the State to accommodate ballot access during the pandemic, 

we hold that Kishore and Santa Cruz’s exclusion from the ballot does not violate these 

constitutional provisions. Therefore, we AFFIRM the district court. 

I.

A. Michigan’s Ballot-Access Laws

Kishore and Santa Cruz are the Socialist Equality Party’s candidates for president and 

vice president. To appear as independent candidates on the ballot in Michigan, they must file a 

qualifying petition containing a sufficient number of valid signatures. See Mich. Comp. Laws 

§§ 168.590a(2), 168.590b(2). In normal circumstances, Kishore and Santa Cruz would have to 

obtain at least 30,000 valid signatures of registered voters, Mich. Comp. Laws § 168.544f, with 

at least 100 signatures from registered voters in at least one-half of the fourteen congressional 

districts in Michigan, Mich. Comp. Laws § 168.590b(4). However, a district court in Michigan 

permanently enjoined the State from enforcing these signature requirements against independent 

candidates. See Graveline v. Benson, 430 F. Supp. 3d 297, 318 (E.D. Mich. 2019). The district 

court in Graveline ordered, as an interim measure, that the signature requirements for 

independent candidates be reduced to 12,000.1 Id. The qualifying petition was due on July 16, 

Mich. Comp. Laws § 168.590c(2), and signatures could not be more than 180 days old when the 

petition was filed, Mich. Comp. Laws § 168.590b(3). Therefore, Plaintiffs could gather 

signatures between January 18, 2020 and July 16, 2020. 

B. Michigan’s Response to COVID-19

Michigan Governor Gretchen Whitmer has issued numerous executive orders in response 

to COVID-19. On March 23, 2020, she issued a “Stay-at-Home Order” that required, among 

other things, all persons not performing essential or critical infrastructure job functions to stay in 

their place of residence other than in certain limited circumstances—such as to buy groceries, 

care for loved ones or engage in outdoor activities—while observing proper social-distancing 

1Graveline is on appeal before a different panel of this court, and so the interim signature requirement is 

still in effect. 
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 3

guidelines. Mich. Exec. Order No. 2020-21, available at https://bit.ly/3kB2DqE. This Stay-atHome Order was to be in effect through April 13, 2020, but Governor Whitmer subsequently 

extended it through April 30, see Mich. Exec. Order No. 2020-42, available at

https://bit.ly/31FPynb, then through May 15, see Mich. Exec. Order No. 2020-59, available at 

https://bit.ly/33QCCh8, and then again through May 28, see Mich. Exec. Order No. 2020-77, 

available at https://bit.ly/3gTheLS. Then, on June 1, Governor Whitmer issued two executive 

orders that permitted the reopening of many businesses in the state and allowed groups of 

persons not part of a single household to gather outside in limited numbers. See Mich. Exec. 

Order No. 2020-110, available at https://bit.ly/2XXGN6K; Mich Exec. Order No. 2020-115, 

available at https://bit.ly/31RcdwS.

C. Plaintiffs’ Campaign and Signature-Gathering Efforts

Plaintiffs announced their candidacies in January 2020. They immediately began 

organizing a series of meetings and public events in Michigan to launch the campaign. They 

hosted an event at the University of Michigan in Ann Arbor on February 24, and a second event 

at Wayne State University in Detroit on February 27. However, the events netted no signatures 

on their qualifying petition. Thereafter, Kishore traveled to California and hosted several events, 

but he again failed to receive any qualifying signatures. Kishore returned to Michigan in early 

March and still had obtained no signatures. At this point he decided to cancel all subsequent 

public events and campaign activity, including signature-gathering initiatives, in order to protect 

his campaign staff from COVID-19. 

Thus, Plaintiffs had the opportunity to collect signatures on their qualifying petition with 

no restriction from any of Governor Whitmer’s executive orders from the beginning of their 

campaign (January 18) to the date of Governor Whitmer’s first Stay-at-Home Order (March 23). 

Plaintiffs have also had the opportunity to gather signatures in person from the date of the 

reopening orders (June 1) to the filing deadline (July 16). Yet, in all this time, Plaintiffs have not 

obtained a single signature on their qualifying petition. 
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 4

D. Proceedings Below

Plaintiffs sued various state officials in federal court on June 18. In their complaint, 

Plaintiffs alleged that the Stay-at-Home Order makes Michigan’s ballot-access laws 

unconstitutional as applied to them because those requirements “are literally impossible for the 

Plaintiffs to fulfill during the ongoing global coronavirus pandemic.” R. 1 at PageID 2. 

Plaintiffs requested a preliminary injunction restraining the State from enforcing its ballot-access 

laws. 

II.

A. The Anderson-Burdick framework

“[T]he right to vote in any manner and the right to associate for political purposes 

through the ballot [are not] absolute,” and “States retain the power to regulate their own 

elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). The Anderson-Burdick framework 

governs First and Fourteenth Amendment challenges to ballot-access restrictions. See Anderson 

v. Celebrezze, 460 U.S. 780 (1983); Burdick, 504 U.S. at 441. Within that framework, “the 

rigorousness of our inquiry into the propriety of a state election law depends upon the extent to 

which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 

504 U.S. at 434. 

When state law imposes “‘severe’ restrictions,” “the regulation must be ‘narrowly drawn 

to advance a state interest of compelling importance.’” Id. (quoting Norman v. Reed, 502 U.S. 

279, 289 (1992)). When state law imposes “reasonable, nondiscriminatory restrictions,” 

however, the law is subject to rational-basis review and “the State’s important regulatory 

interests are generally sufficient to justify” the restrictions. Id. (quoting Anderson, 460 U.S. at 

788). When state law imposes an intermediate restriction that falls somewhere between those 

two poles, “we weigh the burden imposed by the State’s regulation against ‘the precise interests 

put forward by the State as justifications for the burden imposed by its rule, taking into 

consideration the extent to which those interests make it necessary to burden the plaintiff’s 

rights.’” Thompson v. DeWine, 959 F.3d 804, 808 (6th Cir. 2020) (per curiam) (quoting Burdick, 

504 U.S. at 434).
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 5

B. The Burden Imposed

Under Anderson-Burdick, we must first “determine the burden the State’s regulation 

imposes on the plaintiffs’ First Amendment rights.” Thompson, 959 F.3d at 808. Kishore and 

Santa Cruz contend that Michigan’s response to the COVID-19 pandemic—namely, the Stay-atHome Order first issued on March 23, 2020—renders the ballot-access laws unconstitutional as 

applied to them, because they were effectively prevented from obtaining signatures and, thus, the 

order imposed a “severe” burden on their First and Fourteenth Amendment rights. 

We concluded in Esshaki v. Whitmer that strict application of Michigan’s ballot-access 

laws to primary-election candidates, when combined with the Stay-at-Home Order, imposed a 

severe burden on constitutional rights. 813 F. App’x 170, 172 (6th Cir. 2020); see also 

SawariMedia, LLC v. Whitmer, 963 F.3d 595, 597 (6th Cir. 2020). However, we concluded in 

Thompson that Ohio’s ballot-access laws and COVID-19 restrictions place an intermediate 

burden on the plaintiffs’ First and Fourteenth Amendment rights when seeking to add local 

initiatives and a constitutional amendment to the November ballot. Thompson, 959 F.3d at 809–

11. And, in Hawkins, we determined that those same ballot-access laws and COVID-19 

restrictions placed an intermediate burden on presidential candidates from a minor political party 

seeking to have their names placed on the ballot. See Hawkins v. DeWine, --- F.3d ---, No. 20-

3717, 2020 WL 4435524 (6th Cir. Aug. 3, 2020); 

The burdens in this case are materially less than those in Esshaki. Significantly, the 

timing for gathering signatures was different. We held that there was a severe burden because 

Michigan’s Stay-at-Home Order remained in effect through the deadline to submit ballot-access 

petitions, effectively excluding all candidates who had not already satisfied the signature 

requirements (and predicted a shutdown). See 813 F. App’x at 171. But here, Kishore and Santa 

Cruz had the opportunity to gather signatures from January 18 to March 23 (before the Stay-atHome Order went into effect), and then the renewed opportunity in early June (when the order 

was lifted). Although “these are not normal times,” we still consider “all opportunities these 

parties had to exercise their rights.” Thompson, 959 F.3d at 809. That Plaintiffs had several 

weeks to gather signatures both before the Stay-at-Home Order went into effect and after it was 

lifted undermines their argument that Michigan has excluded them from the ballot. See id. at 
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 6

810. So, the burden imposed by the Stay-at-Home Order is less onerous than the burden in 

Esshaki and more comparable to the burdens imposed upon the plaintiffs in Thompson and 

Hawkins. See id.

Furthermore, it was Plaintiffs (and not the State) who imposed much of the burden that 

they face on themselves. “First Amendment violations require state action.” Id.; see U.S. Const. 

amend. I (“Congress shall make no law . . . .”); 42 U.S.C. § 1983 (“Every person who, under 

color of any statute, ordinance, regulation, custom, or usage, of any State . . . .”). To be sure, the 

State imposed some burden on Plaintiffs during the ten weeks that the Stay-at-Home Order was 

in effect. But Plaintiffs were free to obtain signatures in person from the time they announced 

their campaign in January until the Stay-at-Home Orders were issued on March 23. And they 

were free to gather signatures starting on June 1 when the Orders were lifted. They made the 

conscious choice not to do so. Although their decision was quite understandable, “we cannot 

hold private citizens’ decisions to stay home for their own safety against the State.” Thompson, 

959 F.3d at 810.

C. The Justification

The next step under Anderson-Burdick is to “consider the State’s justifications for the 

restrictions.” Schmitt v. LaRose, 933 F.3d 628, 641 (6th Cir. 2019). Because Michigan’s ballotaccess laws as applied to Kishore and Santa Cruz impose an intermediate burden, the state need 

only demonstrate that it has “legitimate interests to impose the burden that outweigh it.” 

Thompson, 959 F.3d at 811. In considering the legitimate interests presented by the State, “the 

Court must not only determine the legitimacy and strength of each of those interests; it also must 

consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” 

Anderson, 460 U.S. at 789. 

Michigan provides two reasons for its ballot-access laws that this court has already 

determined are legitimate. First, the State contends that the signature requirement ensures that a 

candidate has a modicum of support before appearing on the ballot in order to further the State’s 

interest in a fair and orderly election by avoiding ballot overcrowding, frivolous candidates, and 

voter confusion. See Hawkins, 2020 WL 4435524, at *3; see also Schmitt, 933 F.3d at 641. 
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 7

Second, Michigan contends that the filing deadline is essential to ensure an orderly, timely 

election. Kishore does not meaningfully dispute these interests, which, as we observed in 

Hawkins, --- F.3d at ---, 2020 WL 4435524, at *3, Thompson, 959 F.3d at 811, and Esshaki, 813 

F. App’x at 171, are legitimate. 

D. Constitutional Validity of the Restrictions

“At the third step of Anderson-Burdick we assess whether the State’s restrictions are 

constitutionally valid given the strength of its proffered interests.” Schmitt, 933 F.3d at 641. 

Plaintiffs point to our decision in Esshaki to suggest that the combination of the ballot-access 

provisions and the Stay-at-Home Order cannot pass constitutional muster. But there, we applied 

strict scrutiny because the combined effect of the Stay-at-Home Order and ballot-access 

provisions effectively excluded the candidates from the ballot. 813 F. App’x at 171–72; see 

Thompson, 959 F.3d at 809 (“At bottom, a severe burden excludes or virtually excludes 

electors . . . from the ballot.”). To be sure, obtaining signatures might well be more difficult now 

than it would be in normal circumstances. But, “just because procuring signatures is now harder 

(largely because of a disease beyond the control of the State) doesn’t mean that Plaintiffs are 

excluded from the ballot.” Thompson, 959 F.3d at 810. 

On balance, the State’s well-established and legitimate interests in administering its own 

elections through candidate-eligibility and ballot-access requirements outweigh the intermediate 

burden imposed on Plaintiffs. 

E. Other Preliminary-Injunction Factors

The other preliminary-injunction factors also support Michigan. See Thompson, 959 F.3d 

at 807. When analyzing the balance of equities, “[the Supreme] Court has repeatedly 

emphasized that lower federal courts should ordinarily not alter the election rules on the eve of 

an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 

(2020) (per curiam); Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam). This principle 

applies here. Michigan has indicated that we must resolve the appeal by September 3 so that its 

ballot may be timely certified. In addition, by failing to collect even a single signature during 

times in which there were no restrictions, Plaintiffs have in some respects created the need for 
No. 20-1661 Kishore, et al. v. Whitmer, et al. Page 8

the emergency relief. See Morgan v. White, 964 F.3d 649, 651 (7th Cir. 2020) (per curiam). As 

the district court also recognized, although Plaintiffs decided not to seek any signatures in 

March, they waited more than three months to file this action in mid-June. See Benisek v. 

Lamone, 138 S. Ct. 1942, 1944–45 (2018) (per curiam); cf. Little v. Reclaim Idaho, --- S. Ct. ---, 

2020 WL 4360897, at *2 (U.S. July 30, 2020) (Roberts, C.J., concurring in the grant of stay). 

III.

The judgment of the district court is AFFIRMED.