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Bormuth v. Johnson

United States District Court, E.D. Michigan, Southern Division

January 10, 2017

RUTH JOHNSON, Defendant.


          Nancy G. Edmunds United States District Judge

         Plaintiff Peter Bormuth filed this pro se civil rights action against Defendants Ruth Johnson and Bill Schuette in their official capacities as Michigan Secretary of State and Attorney General, respectively.[1] Bormuth, a former Democratic primary candidate for the Michigan House of Representatives, maintains that Johnson wrongfully denied his recount petition and implemented a series of unconstitutional measures related to the filing of campaign finance disclosure documents. On October 24, 2016, the Magistrate Judge issued a report recommending dismissal of all claims related to Bormuth's request for a recount. (Dkt. 13).[2] Both parties filed a series of objections. (Dkt. 15 & 16). For the reasons stated more thoroughly below, the Court agrees with the Magistrate Judge's recommendation as modified.

         I. BACKGROUND

         Plaintiff Peter Bormuth was a Democratic primary candidate for the 64th District of the Michigan House of Representatives in the August 2, 2016 election. The election did not go well for Bormuth; in the end, his opponent, Ron Brooks, received nearly 75% of the total vote, winning by a final count of 1240 to 419. On August 6, 2016, Bormuth emailed the Jackson County Elections Director and the Director of Disclosure Data Division at the Secretary of State, "requesting a recount in the race due to possible manipulation of the voting machine tallies." (Compl. ¶ 36). Five days later, Bormuth filed an official petition for recount under Mich. Comp. Laws § 168.879, alleging that he was "aggrieved over the possibility of fraud." (Id. at ¶ 66). Despite losing the election by 821 votes, Bormuth's petition was limited to one precinct-totaling 100 votes-in the City of Jackson.

         On August 18, 2016, Bormuth was advised by the Michigan Bureau of Elections that his petition for recount would not be honored. Specifically, the Director of the Election Liaison Division explained that, "[t]he purpose of a recount under law is to confirm the election results as canvassed. A valid request for a partial recount must include a sufficient number of votes to possibly affect the outcome of the election. Your petition seeking the recount of a single precinct cannot meet this criteria and is therefore an insufficient filing . . . ." (Id. at ¶ 49). The following month, Bormuth filed this lawsuit, asserting multiple claims under 42 U.S.C. §§ 1973, 1983, 1985, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, among other statutes. In essence, Bormuth seeks an order compelling Johnson to undertake the recount, and an award of damages for his trouble.

         On September 30, 2016, Johnson filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge has since issued a report recommending dismissal of all claims related to Bormuth's request for a recount--essentially half of his complaint. The parties have filed a series of objections revolving around four discrete issues: mootness, the statutory definition of an "aggrieved party", the sufficiency of Bormuth's fraud allegations, and the plausibility of his claims under the Fourteenth Amendment. The Court considers each in turn.

         II. STANDARD

         This Court performs a de novo review of those portions of the Magistrate Judge's Report and Recommendation to which Plaintiff has objected. 28 U.S.C. § 636(b). The Court need not and does not perform a de novo review of the report's unobjected-to findings. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Moreover, an objection that "does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an 'objection' as that term is used in this context.'" Aldrich v. Bock, 327 F.Supp. 2d. 743, 747 (E.D. Mich. 2004). Indeed, the purpose of an objection to a report and recommendation is to provide the Court “with the opportunity to consider the specific contentions of the parties and to correct any errors immediately.” Id. (quoting United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981).

         III. ANALYSIS

         A. Mootness

         According to Johnson, Bormuth's entire complaint "is moot because [his] demand for a partial recount is not capable of repetition yet evading review." (Def.'s Obj. 2). The Magistrate Judge disagreed with this line of reasoning, concluding that the mootness exception applied because (1) "the challenged action was too short in duration to be fully litigated before it ended", and (2) "Bormuth and others are capable of running in an election and encountering the types of issues raised in this case." (Report and Recommendation, 9-10). Johnson now summarily reasserts her original argument, suggesting that the Magistrate Judge erred by failing to dismiss the entire complaint on mootness grounds.

         Despite Johnson's failure to properly develop her objection, the Court is satisfied that the Magistrate Judge correctly rejected her mootness argument. The mootness exception applies when "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and [] there was a reasonable expectation that the same complaining party would be subjected to the same action again." Lawrence v. Blackwell, 430 F.3d 368, 370 (6th Cir. 2005) (citation omitted). Here, the first prong of the exception is easily met; with less than two months between the primary election and the deadline for having ballots approved and printed under the federal MOVE Act, there was no opportunity for Bormuth to fully litigate his challenge prior to its cessation. Indeed, the Sixth Circuit has "found that election cases fall into the 'capable of repetition, yet evading review' exception even when challengers had a period of eleven months to pursue their claims in federal court." Libertarian Party of Michigan v. Johnson, 714 F.3d 929, 932 (6th Cir. 2013) (citation omitted).

         Furthermore, contrary to Johnson's suggestion, the second prong turns on "whether the controversy [is] capable of repetition . . . [not] whether the claimant [has] demonstrated that a recurrence of the dispute [is] more probable than not." Lawrence, 430 F.3d at 371. Here, "there is a reasonable expectation that some candidate in the future will ask for a single precinct recount because of their concern for voting machine manipulation." (Report and Recommendation at 9). Indeed, if recent history-i.e. the Presidential election-is any indicator, challenges in this context are only likely to increase as technology evolves.

         For all of those reasons, the Court finds that Bormuth's complaint falls into the "capable of repetition but evading review" exception to mootness, and ...

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