United States District Court, E.D. Michigan, Southern Division
ORDER: (1) DENYING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT [ECF NO. 28]; AND (2)
GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTIVE RELIEF [ECF NO. 30]
Victoria A. Roberts, United States District Judge.
case concerns the constitutionality of a group of Michigan
laws that govern an independent candidate's ability to be
on the ballot for election to statewide office (i.e., the
offices of governor, lieutenant governor, attorney general,
secretary of state, and the offices of United States Senate
Christopher Graveline (“Graveline”) attempted to
get on the November 2018 general election ballot as an
independent, non-partisan candidate for attorney general.
However, after failing to collect the number of signatures
required to appear on the ballot by the prescribed deadline,
Graveline and three of his supporters (the
“Plaintiffs”) filed this case against the
Michigan Secretary of State (then Ruth Johnson; now Jocelyn
Benson) and Sally Williams, the Director of Michigan's
Bureau of Elections (collectively, “the State” or
allege that the governing statutes - Mich. Comp. Laws
§§ 168.590c(2), 168.544f, and 168.590b(4) - operate
in combination to deprive them of their rights to freedom of
speech and association, equal protection, and due process
under the First and Fourteenth Amendments to the United
briefing and a hearing, the Court entered a preliminary
injunction - finding that Plaintiffs were likely to succeed
in showing that Michigan's ballot access requirements for
independent candidates for statewide office were, in
combination, unconstitutional as applied to them. That
injunction placed Graveline on the ballot for the 2018
matter is now before the Court on the parties' cross
motions for summary judgment. [ECF Nos. 28, 30]. The Court
held a hearing on the motions on December 17, 2019.
reasons below, the Court GRANTS
Plaintiffs' motion and DENIES
Michigan's Current Ballot Access Laws
law provides different filing and eligibility requirements
for attorney general candidates based on their affiliation
and/or candidacy type.
allows independent candidates for statewide office to be on
the general election ballot if the candidate submits an
affidavit and “qualifying petition.” Mich. Comp.
Laws §§ 168.590(1), 168.590c(2) (2008). A
qualifying petition must have at least 30, 000 valid
signatures and must be submitted no later than “the one
hundred-tenth day before the general election.”
Id. §§ 168.590c(2), 168.544f. Moreover,
the signatures on a qualifying petition must be obtained
within 180 days of the filing deadline, and as part of the
signature requirement, a qualifying petition must be signed
by at least 100 registered voters in each of at least half of
Michigan's 14 congressional districts (the
“geographic distribution requirement”).
Id. § 168.590b(3).
filing deadline for independent attorney general candidates
for the November 6, 2018 election was July 19, 2018.
Therefore, the official process for an independent candidate
trying to run for attorney general in the November 6, 2018
general election began in late January 2018 - 180 days prior
to the July 19 deadline.
Major Party Candidates
for Michigan attorney general from the major political
parties - Republican, Democratic, and Libertarian - are
nominated at party conventions rather than elected in a
primary. Candidates from these parties do not have to
circulate nominating petitions or obtain signatures in
support of their candidacies.
political party must hold its convention “not less than
60 days before the general November election.” Mich.
Comp. Laws § 168.591(1). In 2018, that deadline fell on
September 7, 2018. Given this law, an independent candidate
likely would be ignorant of the identities of the major party
candidates before the independent candidate filing deadline.
History of Michigan's Ballot Access Laws for Independent
Candidates for Statewide Office
three ballot eligibility requirements being challenged - the
30, 000 signature requirement, the filing deadline, and the
geographic distribution requirement - have, in all material
respects, been in effect since 1988.
30, 000 signature figure equates to just less than one
percent of ballots cast for attorney general in the past two
elections, 2018 and 2014.
Michigan enacted this statutory scheme in 1988, no
independent candidate for statewide office has qualified for
the ballot. This does not include independent candidates for
the President of the United States; two independent
candidates for President did satisfy Michigan's statutory
scheme - Ross Perot in 1992 and Ralph Nader in 2004.
significant number of people have attempted to qualify for
the ballot as independent candidates for statewide office
since 1988. Based on records submitted by Defendants showing
the number of independent candidate committees formed, there
have been 30 individuals since 1997 who tried to get on
ballots as independent candidates for statewide offices.
alone is sufficient to show a significant number of attempts
to satisfy Michigan's electoral scheme by independent
candidates for statewide office. However, these records are
incomplete in material ways. First, the records only go back
to 1997, not 1988. The records also do not include the number
of committees formed for all statewide offices; they do not
include the number of independent candidates who attempted to
run for United States Senate in Michigan. Finally, as
Defendants acknowledge, the 30 candidates/committees shown by
the records do not include “pending” committees;
when including pending committees - which Defendants describe
as committees that have “not completed the
process” and were “not  legally formed, ”
[ECF No. 34, PageID.646] - the number of candidates would be
46 since 1997.
Practicalities of Circulating Petitions/Collecting
parties agree that mounting a successful all-volunteer
signature collection effort is difficult to accomplish.
Indeed, Lee Albright - a signature gathering expert retained
by the State with nationwide experience gathering signatures
for petition efforts since 1988, including several statewide
petition efforts in Michigan - opined that, “[w]hile
[he] ha[s] seen some successful efforts by volunteers to
qualify a petition for the ballot, it is unusual. Most often,
all-volunteer efforts fail and professionals are used to
augment signature gathering efforts.” [ECF No. 28-7,
difficulty of complying with a high signature requirement is
multiplied by the fact that a 75% validity rate is “the
industry standard” - and even that rate “can be
difficult to maintain.” [Id., PageID.390].
Assuming a 75% validity rate, that means an independent
candidate for statewide office would need to collect 40, 000
signatures to be assured of qualification. [Id.].
Mr. Albright indicates there are too many variables for him
to attach a range of costs to a paid signature-gathering
effort, the limited evidence in the record shows paying for
such effort is costly. [Id., PageID.391]. Moreover,
“[e]ven volunteer efforts have a cost attached to them
- petition processing and verification, etc.”
[Id., PageID. 392].
discussed below, to the extent Graveline used a professional
signature-gathering firm, he paid $6 per signature, with a
guaranteed 75% validity rate. Notably, Mr. Albright opines -
with some speculation - that had Graveline used the entire
180 days allowed by statute, “his costs per signature
might have been lower.” [Id.
(emphasis added)]. Nevertheless, even assuming the cost for a
professional signature-gathering firm which guarantees a 75%
validity rate is only $3 per signature collected - half of
what Graveline paid - it would cost an independent candidate
without a volunteer collection effort $120, 000 to comply
with Mich. Comp. Laws. § 168.544f.
Graveline's Campaign Efforts
waited to begin his campaign until June 4, 2018. His delay
was based on two factors. First, Graveline stated that he
“only entered th[e] [attorney general] race when it
became reasonably clear to [him] that the Democratic and
Republican Parties would be nominating candidates who d[id]
not subscribe to [his] ideals.” [ECF No. 1-3,
PageID.32]. The earliest he made this decision was after the
Democratic Party's April 15, 2018 informal, early
endorsement convention. [Id., PageID.29-32]. The
second factor which delayed the launch of Graveline's
campaign was his occupation as an Assistant United States
Attorney; as a federal employee, the Hatch Act required
Graveline to resign his position before he could file as a
candidate for what is considered a partisan office.
[Id., PageID.32-33]. Thus, while Graveline was
seriously considering an independent candidacy in May 2018,
he was not able to file formally until after he resigned from
June 7 until the July 19 deadline, Graveline collected 14,
157 signatures. [Id., PageID. 34-35]. Assuming a 75%
validity rate, this amounted to approximately 10, 600 valid
and 231 volunteers collected 7, 899 signatures.
[Id.]. Graveline also retained a professional
signature-gathering firm which gathered over 6, 000
signatures; the firm charged $6 per signature and guaranteed
at least 75% of the signatures it collected would be valid.
[Id.]. This effort required over 1, 000 hours of
volunteer time and the expenditure of $38, 000.
attempted to file his petition on July 19. However, although
Graveline satisfied § 168.590b(4)'s geographic
distribution requirement by gathering at least 100 signatures
in 12 of Michigan's 14 congressional districts, the State
rejected the petition because it did not contain 30, 000
and the Voter-Plaintiffs - Willard Johnson, Michael Leibson,
and Kellie Deming - filed this case on July 27, 2018. Each of
the Voter-Plaintiffs is a registered Michigan voter who
wanted to vote for Graveline as an independent candidate for
attorney general. They also say they want to vote for
independent candidates for Michigan attorney general (and
other statewide office positions) in future elections.
complaint contains three causes of action, though Plaintiffs
abandoned Count I. [See ECF No. 12, PageID.150].
Both remaining claims set forth an as applied challenge to
§§ 168.590c(2), 168.544f, and 168.590b(4).
Plaintiffs allege that, in combination, those statutes
function as an absolute bar to independent candidates for
Count II, Plaintiffs allege that as applied and in
combination, the challenged statutes deprive them of their
rights to freedom of speech and association, equal
protection, and due process under the First and Fourteenth
Amendments to the United States Constitution.
Count III, the Voter-Plaintiffs allege that the combined
effect of Michigan's statutory scheme violates their
right to “cast a meaningful and effective vote”
because they are unable to vote for Graveline or another
seek an order declaring §§ 168.590c(2), 168.544f,
and 168.590b(4) unconstitutional “as applied in
combination to [them].”
after filing the complaint, Plaintiffs moved for preliminary
injunction. After briefing and argument, the Court granted
the motion, finding that Plaintiffs were likely to succeed on
the merits by showing that “the combination of
Michigan's ballot access regulations severely burdens
their fundamental rights under the First and Fourteenth
Amendments[, ]” and that the State “[fell] far
short of satisfying its burden to show that the severe
burdens caused by the scheme are justified.”
Court ordered that: “(1) Graveline must immediately
present his qualifying petition . . . to the Bureau of
Elections; (2) The State must accept Graveline's filing
as complete and determine the validity of the signatures in
time to place Graveline on the ballot if he has sufficient
valid signatures; and (3) If Graveline has at least 5, 000
valid signatures . . . [, ] his name must be placed on the
November 6, 2018 general election ballot as an independent
candidate for the Office of Michigan Attorney General.”
State filed a notice of appeal and moved in this Court to
stay the preliminary injunction pending appeal. The Court
denied the motion to stay.
then filed a motion to stay with the Sixth Circuit.
September 6, 2018, the Sixth Circuit denied the motion,
finding that: (1) “[t]he numerical signature
requirement here, in combination with the signature
collection window and filing deadline, is a severe burden on
independent candidates and those who wish to vote for them,
” Graveline v. Johnson, 747 Fed.Appx. 408, 414
(6th Cir. 2018); and (2) although “the State's
generalized interests [regarding] the integrity of its
election process, the prevention of voter confusion, and the
screening out of frivolous candidates . . . are important
state interests[, ]” the State failed to show
“that [its] laws are narrowly drawn to protect its
interests, ” id. at 415. Notably, the Sixth
Circuit did not discuss the geographic distribution
requirement because “Graveline was able to comply with
the requirements of Michigan Compiled Laws §
168.590b(4), . . . and so he does not contest that
requirement.” Id. at 410 n.1.
review of his petition, the State placed Graveline on the
November 6, 2018 general election ballot as an independent
candidate for attorney general.
August 15, 2019, the parties filed cross motions for summary
judgment. The Court held a hearing on the motions on December
the hearing, Plaintiffs indicated that - contrary to the
statement in the Sixth Circuit's opinion denying the
State's motion to stay, see Graveline, 747
Fed.Appx. at 410 n.1 - they maintain their challenge to the
geographic distribution requirement as part of their
“combined effect” claims. While Plaintiffs
acknowledged that their claims focused primarily on the
burden imposed by the high signature requirement and early
filing deadline, they did not intend to abandon their claim
that the geographic distribution requirement was also a
burden; rather Plaintiffs say it compounds the burden imposed
by the signature requirement and early filing deadline.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a), “[t]he Court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The movant
bears the initial burden to inform the Court of the basis for
its motion; it must identify particular portions of the
record that demonstrate the absence of a genuine dispute as
to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the movant satisfies its burden, the
non-moving party must set forth specific facts showing a
genuine issue for trial. Id. at 324. Unsupported,
conclusory statements are insufficient to establish a factual
dispute to defeat summary judgment, as is the “mere
existence of a scintilla of evidence in support of the
[non-movant's] position”; the evidence must be such
that a reasonable jury could find in its favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir.
deciding a summary judgment motion, the Court “views
the factual evidence and draws all reasonable inferences in
favor of the nonmoving party.” McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The
Court need only consider the cited materials, but it may
consider other evidence in the record. Fed.R.Civ.P. 56(c)(3).
The Court's function at the summary judgment stage
“is not to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine
issue for trial.” Liberty Lobby, 477 U.S. at
249. “The standard of review for cross-motions for
summary judgment does not differ from the standard applied
when a motion is filed by only one party to the
litigation.” Lee v. City of Columbus, 636 F.3d
245, 249 (6th Cir. 2011).