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Graveline v. Benson

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

December 22, 2019

CHRISTOPHER GRAVELINE, et al., Plaintiffs,
JOCELYN BENSON, in her official capacity as Michigan Secretary of State, et al., Defendants.


          Victoria A. Roberts, United States District Judge.


         This 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 and President).

         Plaintiff 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 “Voter-Plaintiffs”; collectively “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 “Defendants”).

         They 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 States Constitution.

         After 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 election.

         This 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.

         For the reasons below, the Court GRANTS Plaintiffs' motion and DENIES Defendants' motion.


         A. Michigan's Current Ballot Access Laws

         Michigan law provides different filing and eligibility requirements for attorney general candidates based on their affiliation and/or candidacy type.

         i. Independent Candidates

         Michigan 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).

         The 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.

         ii. Major Party Candidates

         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.

         A major 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.

         B. History of Michigan's Ballot Access Laws for Independent Candidates for Statewide Office

         The three ballot eligibility requirements being challenged - the 30, 000 signature requirement, the filing deadline, and the geographic distribution requirement - have, in all material respects[1], been in effect since 1988.

         Michigan's 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.

         Since 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.

         A 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.

         This 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.

         C. Practicalities of Circulating Petitions/Collecting Signatures

         The 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, PageID.391].

         The 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.].

         Although 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].

         As 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.

         D. Graveline's Campaign Efforts

         Graveline 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 federal service.

         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 signatures.

         Graveline 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. [Id.].

         Graveline 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 signatures.

         E. The Complaint

         Graveline 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.

         Plaintiffs' 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 statewide office.

         In 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.

         In 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 non-partisan candidate.

         Plaintiffs seek an order declaring §§ 168.590c(2), 168.544f, and 168.590b(4) unconstitutional “as applied in combination to [them].”

         F. Procedural Posture

         Shortly 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.”

         The 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.”

         The 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.

         Defendants then filed a motion to stay with the Sixth Circuit.

         On 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.

         After review of his petition, the State placed Graveline on the November 6, 2018 general election ballot as an independent candidate for attorney general.

         On August 15, 2019, the parties filed cross motions for summary judgment. The Court held a hearing on the motions on December 17, 2019.

         During 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.


         Under 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. 2009).

         In 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).

         IV. ...

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