Erard v. Michigan Secretary of State et al
Filing
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ORDER Adopting Report and Recommendations [18 & 31] and Denying 12 Motion for Preliminary Injunction, Motion for TRO filed by Matt Erard. Signed by District Judge Stephen J. Murphy, III. (CCoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATT ERARD,
Case No. 12-cv-13627
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
MICHIGAN SECRETARY OF STATE
RUTH JOHNSON,
Defendant.
/
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORTS AND
RECOMMENDATIONS (docket nos. 18 & 31) AND DENYING
PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
AND/OR TEMPORARY RESTRAINING ORDER (docket no. 12)
Plaintiff Matt Erard filed his pro se complaint for declaratory and injunctive relief on
August 15, 2012. He alleges that the state of Michigan's ballot-qualification procedures are
discriminatory and violate provisions of the United States and Michigan Constitutions. This
matter is before the Court on Plaintiff's motion for a preliminary injunction or temporary
restraining order. Pl.'s Mot. Prelim. Inj., ECF No. 12. The motion was referred to a
magistrate judge, who issued two reports and recommendations (“R&R”) recommending
denying the motion under both the standard for a temporary restraining order and the
standard for a preliminary injunction. ECF Nos. 18 & 31. Plaintiff has filed objections to the
recommendation to deny his motion for a preliminary injunction. For the reasons that follow,
the Court will overrule Erard's objections, adopt the recommendations of the magistrate
judge, and deny the motion.
FACTS
Erard alleges in his complaint that he is, among other things, the Socialist Party of
Michigan's nominee for Michigan's 13th Congressional District. Compl. ¶ 14a. He claims
that Mich. Comp. Law §168.685 violates his First and Fourteenth Amendment rights and
his rights under the Michigan Constitution by preventing his political party from being able
to access the ballot, while making it easier for established political parties to place
candidates on the ballot. Under Mich. Comp. Law §168.685(1), for the name of a candidate
of a new political party to be printed on the official election ballot, the party must file with
the secretary of the state before 4 p.m. on the one hundred tenth day before the general
November election
a certificate signed by the chairperson and secretary of the state central
committee bearing the name of the party, together with petitions bearing the
signatures of registered and qualified electors equal to not less than 1% of
the total number of votes cast for all candidates for governor at the last
election in which a governor was elected. The petitions shall be signed by at
least 100 registered electors in each of at least 1/2 of the congressional
districts of the state. All signatures on the petitions shall be obtained not
more than 180 days immediately before the date of filing.
Mich. Comp. Laws Ann. § 168.685 (1). For the November 6, 2012 election, the Socialist
Party of Michigan needed to obtain 32,261 signatures by the July 19, 2012 deadline, but
was only able to obtain 925. Thomas Aff. ¶ 4, ECF No. 20-2. Erard now asks the Court to
issue preliminary and permanent injunctive relief declaring that Michigan's requirements
for new political parties to attain a place on the ballot is unconstitutional. His motion for a
preliminary injunction seeks to have the name and vignette of the Socialist Party of
Michigan placed on the November 6, 2012, ballot along with his name and the names of
several other members of his political party. After ordering expedited briefing and holding
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a hearing on the matter, the magistrate judge issued a thorough 36-page report
recommending denying Erard's motion because the balance of the preliminary injunction
factors — likelihood of success on the merits, harm to others, and public interest — weigh
in favor of Defendant. R&R, ECF No. 31. Erard has now filed objections to this
recommendation.1
STANDARD OF REVIEW
A district court’s standard of review for a magistrate judge’s report and
recommendation depends upon whether a party files objections. With respect to portions
of an R&R that no party has objected to, the Court need not undertake any review at all.
Thomas v. Arn, 474 U.S. 140, 150 (1985). On the other hand, Federal Rule of Civil
Procedure 72(b)(3) provides that the Court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Thus, the Court conducts de novo
review of the R&R with respect to defendant's objections.
DISCUSSION
The Court has conducted a de novo review of the record and finds that none of
Erard's objections, or arguments in support of his motion, warrant the relief he seeks. When
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Erard filed his first set of objections on October 9, 2012, and filed a second set on
October 15, 2012. The earlier filed objections are marked "corrected copy" and Erard
clarified by leaving a message with the Court's staff that he intended the earlier filed copy
to be the one considered. Accordingly, the Court will consider Erard's October 9, 2012
objections here.
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considering a motion for a preliminary injunction the Court must balance the following four
factors:
(1) whether the movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuance of the
injunction.
Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass'n, 110 F.3d 318,
322 (6th Cir. 1997). Plaintiff has a heavy burden to show that injunctive relief is warranted
because "[a] preliminary injunction is an extraordinary remedy never awarded as of right."
Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
Erard has failed to show that he is entitled to this extraordinary remedy. He delayed
in filing this action and in pursuing the instant motion such that the third and fourth factors
weigh heavily against granting injunctive relief. See Nader v. Blackwell, 230 F.3d 833, 835
(6th Cir. 2000) (noting that "[a] state's interest in proceeding with an election increases as
time passes, decisions are made, and money is spent."). The instant motion was filed
September 6, 2012, and the statement of facts supporting the motion was not filed until
September 14, 2012. Mot. Prelim. Inj., ECF No. 12; Statement of Facts, ECF No. 23. But
as Defendant responds, "[t]he ballot was certified on September 9, 2012, in an effort to
comply with the statute dictating that the ballot must be certified by the 60th day before the
election." Resp. in Opp'n to Prelim. Inj. at 18, ECF No. 24 (citing Mich. Comp. Laws
168.648); Thomas Aff., ¶ 5, ECF No. 20-2. Further, "the printing of more than 7,000,000
ballots at the county level commenced on September 13 or 14, 2012." Id. Assuming it is
even possible to grant Erard the relief he seeks at this late date, it would create a
substantial burden for the state of Michigan and would be against the public interest in
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maintaining the stability and integrity of the political process. Moreover, the Court agrees
with the magistrate judge's assessment that Erard has failed to show a substantial
likelihood of success on the merits.
Accordingly, after reviewing the record and evaluating each of the preliminary
injunction factors, the Court finds that the balance of the factors weigh against granting a
preliminary injunction.
WHEREFORE, it is hereby ORDERED that the magistrate judge’s reports and
recommendations (docket nos. 18 & 31) are ADOPTED and Plaintiff's motion for a
preliminary injunction and/or temporary restraining order (docket no. 12) is DENIED
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: October 29, 2012
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 29, 2012, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager
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