Erard v. Michigan Secretary of State et al

Filing 72

ORDER Adopting in part the 55 Report and Recommendation and Granting 46 Defendant's Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATT ERARD,
Plaintiff,

Case No. 12-cv-13627

v.

HONORABLE STEPHEN J. MURPHY, III

MICHIGAN SECRETARY OF STATE
RUTH JOHNSON,
Defendant.
/
ORDER ADOPTING IN PART THE REPORT
AND RECOMMENDATION (document no. 55), AND
GRANTING DEFENDANT’S MOTION TO DISMISS (document no. 46)
Political parties seeking to appear on a Michigan ballot must either obtain a certain
number of votes at the preceding general election or, if they fail to obtain enough votes,
collect a certain number of signatures on a petition. The Socialist Party has not qualified
for inclusion on Michigan’s ballot through either method since 1976. Plaintiff Matt Erard,
however, wants to run for Congress as a Socialist Party nominee and to vote for fellow
nominees. Erard thus seeks a declaration that Michigan’s ballot access law is
unconstitutional and an injunction placing him and other Socialist Party candidates on the
next general election ballot.
Michigan Secretary of State Ruth Johnson (“the Secretary”) moves to dismiss. The
magistrate judge1 handling pretrial matters recommended dismissing all but one claim,
namely that Michigan's ballot access requirements violate the First Amendment as applied
to him. Both parties object to the magistrate’s report and recommendation ("Report").

1

The magistrate judge that issued the report and recommendation has since been
confirmed as a U.S. District Judge and a new magistrate judge has been assigned to the
case.

Having reviewed the Report and the parties’ objections, the Court will adopt the Report in
part and grant the motion to dismiss.
BACKGROUND
Neither party objects to the magistrate’s summary of the facts. The Court thus will
summarize the facts briefly, modifying only the magistrate’s description of Michigan election
law.
I.

Statutory Background
Michigan provides two ways for a political party’s nominee to appear on the general

election ballot.2 First, a political party may qualify for the general election ballot if the party’s
“principal candidate received at the last general election a vote equal to or more than 1%
of the total number of votes cast for the successful candidate for secretary of state at the
last preceding election in which a secretary of state was elected.” Mich. Comp. Laws §
168.560a (emphasis added). For a party to qualify for the November 2014 ballot by this
method, its principal candidate must have received at least 16,083 votes in the November
2012 election. Report 3.
A new or existing political party that cannot satisfy this criterion instead may qualify
by submitting a petition with signatures of registered voters. See Mich. Comp. Laws §
168.685(1), (6). Prior to 1988, a political party needed signatures equal to 1% of the votes
cast for the secretary of state in the preceding election in which a secretary of state was
2

The magistrate erroneously concludes that there are three ways to qualify. In addition
to the two ways described here, the magistrate writes that a party may obtain access by
receiving a particular number of votes at a primary election. Report 2–3, ECF No. 55 (citing
Mich. Comp. Laws §§ 168.531, 168.532). The statutes relied on by the magistrate describe
a method for nominating candidates, not for ballot qualification. See Mich. Comp. Laws §§
168.531 (describing nominations by direct vote at a primary election), 168.532 (describing
nominations by caucus or convention).
2

elected. Report 4. Since 1988, however, a political party has been required to collect
“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.” Mich. Comp. Laws § 168.685(1) (emphasis added). A party qualifying for the
November 2014 election through this method must collect at least 32,261 signatures.
Report 6.
A political party seeking qualification through this method must also comply with
ancillary regulations. Among them, the political party must collect all signatures within 180
days preceding the filing of the petition. Mich. Comp. Laws § 168.685(1). And the political
party must be in “substantially the following form”:
PETITION TO FORM A NEW POLITICAL PARTY
We, the undersigned, duly registered electors of the city, township (strike
one) of .......... county of .......... state of Michigan, residing at the places set
opposite our names, respectfully request the secretary of state, in
accordance with section 685 of the Michigan election law, 1954 PA 116, MCL
168.685, to receive the certificate and vignette accompanying this petition,
and place the names of the candidates of the .......... party on the ballot at the
.......... election
Warning: A person who knowingly signs petitions to organize more than 1
new state political party, signs a petition to organize a new state political
party more than once, or signs a name other than his or her own is violating
the provisions of the Michigan election law.
Mich. Comp. Laws § 168.685(3). The petition title and name of the political party must be
in 24-point boldface type, the warning language must be in 12-point boldface type, and the
remainder of the petition in 8-point type. Mich. Comp. Laws §§ 168.685(4), 168.544c(1).
Until recently, those circulating the petition also had to be registered voters in
Michigan. Report 6 (citing Mich. Comp. Laws § 168.544c(3)). But a new law, which took
effect on April 3, 2014, modifies this requirement. Three classes of people are now eligible
3

to circulate petitions to form a new political party: (1) registered Michigan voters; (2)
individuals eligible to register as Michigan voters; and (3) non-residents who are 18 years
of age, who are U.S. citizens, and who agree to be subject to Michigan's election laws with
respect to the petition. Mich. Pub. Act 94 of 2014 § 544c(3)–(4), available at
http://www.legislature.mi.gov/documents/2013-2014/publicact/pdf/2014-PA-0094.pdf.
Finally, a political party seeking ballot access is subject to other regulations that apply
to all political parties. For example, political parties collecting more than $1,000 in
contributions must disclose those contributions and their expenditures by filing a quarterly
statement with the Bureau of Elections, which then releases the statement to the public.
Report 7.
II.

Factual Background
The Socialist Party has both national and state branches. Report 8. Both aim to

provide political representation to "segments of the State electorate who possess no
financial assets to sell on the market other than their individual labor power." Id. (quoting
Am. Comp. ¶ 51). Of the 250 Michigan residents who have joined the Socialist Party in the
last eight years, most earn less than $20,000 per year. Id.
Since 1976, the Socialist Party has not qualified to appear on the Michigan's ballot.
Id. at 1. The Socialist Party later attempted to regain ballot access by filing a lawsuit in state
court several months before the November 2010 elections. Id. at 20. Among other things,
the Socialist Party argued that Michigan's ballot access requirements on their face violated
the First and Fourteenth Amendments by excessively burdening and unfairly
disadvantaging minor parties. Id.; Br. in Support of Appeal, Socialist Party of Michigan v.

4

Terri Lynn Land, No. 10-867 (Sept. 10, 2010 Mich. Ct. App.). Both Michigan's trial and
appellate courts rejected the Socialist Party's arguments. Report 20–22.
Erard — a longtime member of the Socialist Party, treasurer of the Socialist Party's
"qualified party national committee," and Secretary of the Socialist Party of Michigan — led
another effort to regain ballot access two years later. Id. at 8–9. After the Socialist Party
nominated Erard for Congress in 2012, Erard circulated ballot access petitions on the
Socialist Party's behalf. Id. He collected only 925 signatures out of the 32,261 signatures
needed to gain ballot access. Id. at 9.
After his unsuccessful efforts to collect signatures, Erard filed this lawsuit. He seeks
relief under six theories. First, he argues that Michigan's ballot access requirements unfairly
disadvantage minor political parties, in violation of the Fourteenth Amendment and
Michigan's Purity of Elections Clause. Id. at 10. Second, he argues that the requirements
burden his associational rights, in violation of the First Amendment. Id. Third, he claims that
the Secretary failed to acknowledge that the Socialist Party satisfied the statutory
requirements for ballot access by winning sufficient votes in the November 2010 general
election. Id. at 10–11. Fourth, Erard claims that the Secretary has used inconsistent
definitions of "principal candidate" in determining whether a party has won enough votes
to qualify for the general election ballot. Id. at 11. Fifth, Erard alleges that the Secretary
violated Michigan law by filing to submit the Socialist Party's ballot access petition to the
Board of State Canvassers in 2012. Id. Sixth, Erard argues that the alleged violations of
Michigan law also entitle him to relief under the U.S. Constitution. Id.

5

STANDARD OF REVIEW
A district court must review timely and specific objections to a magistrate judge's
report and recommendation de novo. See Fed. R. Civ. P. 72(b)(2), (b)(3). By contrast, the
court may adopt, reject, or amend the portions of the report and recommendation to which
no party properly objects. See Fed. R. Civ. P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 150
(1985).
DISCUSSION
I.

Jurisdiction and Affirmative Defenses
The magistrate rejected most of the Secretary's jurisdictional arguments and

affirmative defenses, finding only that one of Erard's statutory claims and a derivative
constitutional claim are moot. Erard objects to this mootness finding. Additionally, the
Secretary objects to the magistrate's analysis of her collateral estoppel defense. Neither
objection has merit.
A.

Mootness

Although cases generally become moot "when the issues presented are no long 'live'"
or the parties lose a "legally cognizable interest in the outcome," Demis v. Sniezek, 558
F.3d 508, 512 (6th Cir. 2009), there is an exception for controversies "capable of repetition,
yet evading review," Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir.
2006). The magistrate observes that most of Erard's challenges to Michigan's ballot access
requirements fit this exception. Report 11–14. But relying on Libertarian Party of Ohio, the
magistrate writes that Erard's claim that the Secretary failed to transmit the Socialist Party's
petition for ballot access in 2012 to the Board of State Canvassers does not fit because

6

there are no allegations showing that the Secretary is likely to repeat the omission. Id. at
14.
Erard objects that Libertarian Party of Ohio permits dismissal on mootness grounds
only if he contributed to the statutory violation. Pl.'s Objections 52–54, ECF No. 59. Erard
simply misreads the decision. In Libertarian Party of Ohio, a Sixth Circuit panel dismissed
a claim as moot because there was no "reasonable expectation or a demonstrated
probability that the controversy" would recur. Libertarian Party of Ohio, 462 F.3d at 584.
Fault played no role in the decision. The Court will thus dismiss as moot the claims based
on the Secretary's alleged failure to transmit the petition.
B.

Collateral Estoppel

The Secretary argues that collateral estoppel bars several of Erard's claims that are
identical to those advanced in the Socialist Party's 2010 lawsuit in state court. The
magistrate rejected this argument because it was unclear that the state courts disposed of
the 2010 lawsuit on constitutional grounds and because Erard is not in privity with the
Socialist Party. Report 20–24. The Secretary contests both conclusions. Def.'s Objections
2–10, ECF No. 57.
As the magistrate correctly observes, for collateral estoppel to apply, the Secretary
must show both mutuality between the parties and that the same issue was actually
litigated. Report 19 (citing United States v. Dominquez, 359 F.3d 839, 842 (6th Cir. 2004)).
Although the Court is highly skeptical of the magistrate's conclusion that the state court
lawsuit was not decided on constitutional grounds, there is no need to resolve that issue
because the mutuality requirement is not satisfied.

7

Although Michigan takes a broad view of collateral estoppel, Bates v. Twp. of Van
Buren, 459 F.3d 731, 734 (6th Cir. 2006), it maintains the traditional mutuality requirement,
Dominguez, 359 F.3d at 843 (citing Lichon v. American Universal Ins. Co., 435 Mich. 408
(1990)). Satisfying it requires showing that the party against whom preclusion is asserted
had the same legal rights as the party to the prior litigation. Baraga Co. v. State Tax
Comm., 466 Mich. 264, 269–70 (2002). At minimum, this means that the parties must have
"both a ‘substantial identity of interests' and a ‘working functional relationship' in which the
interests of the nonparty [we]re presented and protected by the party in the litigation." Adair
v. State, 470 Mich. 105, 122 (2004) (quoting Baraga, 466 Mich. at 269–70).
In arguing that the mutuality requirement is satisfied, the Secretary concedes much
ground. The Secretary disclaims that Erard's membership in the Sociality Party, voting
affinity, or candidate status satisfies the privity requirement. Def.'s Objections 8–9. Instead,
the Secretary argues only that mutuality is satisfied based on the "official roles that he has
held within the Party." Id. at 9. There are two difficulties with this argument. The first is that
Erard is not suing in an official capacity, but is instead asserting rights interconnected with
his desire to run for Congress and vote for Socialist Party candidates. The second difficulty
is that the amended complaint does not reveal whether Erard had his official roles in the
Socialist Party at the time of the prior lawsuit such that the requisite "working functional
relationship" existed. Adair, 470 Mich. at 122 (quoting Baraga, 466 Mich. at 269–70).
Therefore, the Court will not dismiss Erard's claims on collateral estoppel grounds.
II.

Statutory Claims
The magistrate also recommended dismissing Erard's remaining statutory claims:

first, that the Secretary failed to recognize that a Socialist Party nominee obtained sufficient
8

votes at the 2012 general election to qualify the Socialist Party for the next ballot; and
second, that the Secretary has applied inconsistent definitions of "principal candidate."
Erard objects to the magistrate's recommendation, but his objections are meritless.
A.

Qualification at the 2012 Election

Erard argues that the Socialist Party qualifies for ballot access at the November 2014
elections because its "principal candidate" obtained "1% of the total votes cast for the
successful candidate for secretary of state." Mich. Comp. Laws § 168.560a. Although it is
undisputed that no candidate at the 2012 elections appeared under the Socialist Party label
on the ballot, Erard alleges that the Socialist Party nominated Dawain Reynolds for the
Board of Education. Report 24–25. Reynolds's name appeared on the ballot under the
Green Party label. Id. But Erard claims that Reynolds counts as a Socialist Party candidate
under Michigan law, because the Socialist Party nominated Reynolds before the Green
Party and Reynolds never specified which party he wanted to represent. Id.
The magistrate rejected this argument for the simple reason that "Reynolds appeared
on the November 2012 general-election ballot under the Green Party label." Id. Because
Michigan's tradition of permitting a candidate to represent multiple parties and "principal
candidate" is an undefined term, Erard objects that Michigan does not require a party's
"principal candidate" to appear under its label on the ballot. Pl.'s Objections 44–50.
Although Michigan does not define "principal candidate" and permits multiple parties
to nominate a candidate, Erard's argument neglects the structure of Michigan's ballot
access requirements. Michigan provides two ways for a political party to appear on the
ballot. Either the party must qualify under Section 168.560a by obtaining a sufficient
number of votes at the preceding general election, or the party must qualify under Section
9

168.685 by obtaining a sufficient number of signatures on a petition. The first method,
however, is only open to parties that appeared on the preceding general election ballot.
Section 168.685 makes this clear. If a political party's principal candidate receives
"less than 1% of the total number of votes cast for the successful candidate for the office
of secretary of state" at a general election, Section 168.685 specifies that the party's
candidates will not appear on the next general election ballot. Mich. Comp. Laws §
168.685(6). Such a "disqualified party" must instead qualify for the ballot in the manner as
a new political party. See id. And it is undisputed that a new political party may qualify only
through the petition method. See id. § 168.685(1). The upshot is that the qualification
method described in Section 168.560a is available only to parties that appeared on the
preceding general election ballot, meaning that the Socialist Party could not qualify for
ballot access by nominating a candidate appearing under another party's label.
Erard resists this conclusion. He posits that some political parties without ballot
access, including the Socialist Party, are neither a new political party nor a disqualified
party. Pl.'s Objections 50–51. This theory, however, conflicts with how Section 168.685
defines disqualified parties.3
B.

Definition of "Principal Candidate"

Erard also claims that the Secretary has employed different definitions of "principal
candidate." Report. 27. After Michigan defined "principal candidate" in 2002 to refer to the
candidate of the party receiving the most votes, the Secretary applied this definition to the

3

In discussing Section 168.685, Erard states that Michigan may have changed its rules
for determining whether a party should be disqualified from the ballot. Pl.'s Objections
51–52. Because he is merely speculating about facts not alleged in his complaint, the Court
will not entertain the objection.
10

2000 election results to determine which parties should qualify for the 2002 ballot. Id. Erard
thus argues that the Secretary acted inequitably by not applying this definition to the 1976
election results to determine if the Socialist Party qualified for the 2002 ballot. Id.
Because Michigan makes the "last preceding general election" the frame of reference
for measuring a party's electoral success, the magistrate concluded that Erard's claim was
meritless. Report 28 (quoting Mich. Comp. Laws § 168.560a). Erard responds by asserting
that the Socialist Party is neither a new nor a disqualified political party. Pl.'s Objections
50–51. As already discussed, this reasoning conflicts with the plain language of the statute.
Therefore, the Court will dismiss Erard's remaining statutory claims.
III.

Federal Constitutional Claims
Erard alleges that Michigan's ballot access requirements burden his First and

Fourteenth Amendment rights. The magistrate, however, recommends granting only
Erard's claim that Michigan's ballot access laws violate his First Amendment rights as
applied to him. Both parties object to this recommendation.
A.

Anderson-Burdick Framework

The first category of objections concerns the appropriate standard for resolving
Erard's constitutional claims. As the magistrate correctly stated, the Anderson-Burdick
framework applies to both First and Fourteenth Amendment claims involving voting rights
and ballot access. See Obama for Am. v. Husted, 697 F.3d 423, 429–31 (6th Cir. 2012);
Libertarian Party of Ohio, 462 F.3d at 585–86. Under this framework, courts are to, first,
weigh the "character and magnitude of the asserted injury" to the plaintiff's constitutional
rights and, then, evaluate the "precise interests" that the state offers to justify the burden.

11

Libertarian Party of Ohio, 462 F.3d at 585 (quoting Anderson v. Celebrezze, 460 U.S. 780,
789 (1983)).
This test creates a sliding scale for evaluating voting regulations. A state's interests
in regulating elections will generally justify "reasonable, nondiscriminatory restrictions" on
the election process. Id. at 586 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). But
state regulations severely burdening a person's voting and equal protection rights must be
"narrowly drawn to advance a state interest of compelling importance." Id. (quoting Burdick,
504 U.S. at 434). Between these two extremes, however, there is no precise formula for
evaluating the appropriate justification for an election regulation. Obama for Am., 697 F.3d
at 429. The analysis will vary with the case. Id.
But while accepting this general formula, the Secretary argues that the magistrate
erred by stating that strict scrutiny applies to regulations that severely burden a person's
First and Fourteenth Amendment rights. Def.'s Objections 16–17. The Court disagrees.
Binding Sixth Circuit precedent equates the Supreme Court's description of the review that
applies to regulations severely burdening a person's rights to strict scrutiny. See Obama
for Am., 697 F.3d at 429 ("[W]hen a state's classification 'severely' burdens the
fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard.").
And the Secretary identifies no subsequent decision that compels this Court to apply a
different analysis. Therefore, the Court will apply strict scrutiny to regulations that severely
burden Erard's rights.

12

B.

Equal Protection Theory

Turning to the substance of Erard's claims, the Court concurs with the magistrate that
his equal protection challenge to Michigan's ballot-access requirements should be
dismissed.
1.

Discrimination against New Parties

Erard principally argues that Michigan's ballot-access requirements facially and
unconstitutionally discriminate between new and established parties by requiring new
political parties to demonstrate roughly twice the voter support as established parties. Pl.'s
Objections 1; Pl.'s Reply to Def.'s Resp. to Pl.'s Objections 2, ECF No. 66. This
characterization of Michigan election law is incorrect for two reasons.
The first error concerns the amount of voter support new and established parties must
show. Michigan law requires new parties to collect petition signatures equal to 1% of the
votes cast for governor and established parties to receive votes equal to 1% of the votes
case for secretary of state. Because the relative number of votes cast for the two offices
may change from year to year, new parties do not necessarily have to meet a higher
numerical threshold than established parties though this may often be the case. The 2010
election results show that the governor received substantially more votes than the secretary
of state. But this single data point does not prove that new political parties must always
collect twice as many signatures as established parties must collect votes. In evaluating
the complaint, the Court thus cannot assign a precise ratio to the relative voter support new
and established parties must show.
The second error is that Erard assumes new and established parties must show the
same quality of voter support. The factual allegations in the complaint leave open the
13

question of whether collecting signatures is more onerous than convincing voters to cast
their ballot for a party. Although the volunteer or financial cost of collecting signatures is
undoubtedly high, the complaint does not compare these costs to the burden of convincing
an individual to cast their ballot for a party's candidate. Nor does the complaint consider
that voting for a party's candidate may be a stronger indicator of voter support than the act
of signing a petition to have a party appear on the ballot. After all, the Michigan legislature
might reasonably conclude that voting for a party's candidate demonstrates higher support
than signing a petition because voting requires choosing one candidate over all others
whereas signing a petition leaves the signer free to vote for another party's candidate.
Given these considerations, the Court cannot conclude that the ballot-access
requirements on their face severely burden Erard's constitutional rights. The regulations
certainly treat new and established parties differently. But having different routes to the
ballot for differently situated political parties is not inherently invidious. The Supreme Court
stated as much in Jenness v. Fortson, 403 U.S. 431 (1971). Faced with a Georgia statute
that required nominees of political parties with 20% of the vote to seek ballot access
through a primary election and that other candidates to obtain access by collecting
signatures of 5% of voters, the Supreme Court held that Georgia did not "violate[] the Equal
Protection Clause of the Fourteenth Amendment by making available these two alternative
paths, neither of which can be assumed to be inherently more burdensome than the other."
Id. at 440–41. The same can be said here.
Erard offers a litany of responses in response to this conclusion. He first argues that
Green Party of Michigan v. Land, 541 F. Supp. 2d 912 (E.D. Mich. 2008), and Williams v.
Rhodes, 393 U.S. 23 (1968), compel finding that Michigan structures elections in a manner
14

to favor established political parties. Both cases, however, are distinguishable. In Green
Party of Michigan, the Court found that a law opening primaries only to parties with a 20%
electoral showing favored major parties because no minor party had ever managed to meet
that threshold. 541 F. Supp. 2d at 917–20. Similarly, in Williams, the Supreme Court
invalidated an Ohio law that froze in place the status quo through a combination of
nomination requirements, early filing deadlines, and organizational requirements. 939 U.S.
at 30–35; see also Jenness, 403 U.S. at 438 (describing and distinguishing Williams). By
contrast, the evidence here suggests that the structure of Michigan law does not give major
parties a decided advantage. All litigants agree that several minor parties have qualified to
appear on Michigan's ballot through the petition route.
Storer v. Brown, 415 U.S. 724 (1974), and American Party of Texas v. White, 415
U.S. 767 (1974), are also inapposite. Although Erard characterizes these cases as about
whether a state can assign different weights to petition signatures and votes, neither
decision dealt with that question. Rather, Storer concerned whether candidates of small
parties could reasonably be expected to collect a certain number of signatures given the
other election regulations in place, 415 U.S. at 738–746, and American Party of Texas dealt
with the constitutionality of ballot-access conditions, including the requirement that a small
party demonstrate a certain level of voter support through nominating conventions or
petitions, 415 U.S. at 776–86.
Additionally, Erard reasons that Michigan's ballot-access requirements must be
discriminatory because the law was written under a system dominated by major parties.
Pl.'s Objections 25. But just because major parties are in power does not mean that the
existing election laws are discriminatory. Although ruling political parties presumably want
15

to maintain their hold on political offices, that does not relieve Erard of the responsibility to
plead facts showing a constitutional violation. And there is no presumption of
unconstitutionality for state election laws. See Libertarian Party, 462 F.3d at 585 ("[V]oting
regulations are not automatically subjected to heightened scrutiny.").
Furthermore, Erard complains that Michigan discriminates against minor parties
because established parties never had to circulate a petition to achieve ballot access. He
explains that when Michigan instituted the two-route system now in place it never required
established parties to circulate a petition. Whether this is true or not, the Court cannot say.
Erard neither alleges this fact in his complaint nor identifies supporting records of which the
Court can take judicial notice. Therefore, the Court will not consider the objection.
Finally, Erard argues that the Secretary fails to justify its election law under even
rational basis review. The Secretary, however, explains that requiring new parties to
demonstrate some measure of voter support is necessary to avoid voter confusion, ballot
overcrowding, and to protect the integrity of the election process. These are legitimate and
important interests. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364–65
(1997); Am. Party of Texas, 415 U.S. at 781–82 & n.14; Jenness, 403 U.S. at 442. And a
ballot-access threshold serves to promote them. See Am. Party of Texas, 415 U.S. at
782–83. Although Michigan might be able to promote these interests with a lesser threshold
than currently imposed, courts have upheld far more stringent ballot-access requirements.
See, e.g., Jenness, 403 U.S. 431 (upholding a threshold of 5% of registered voters);
Libertarian Party of Florida v. Florida, 710 F.2d 790 (11th Cir. 1983) (upholding a threshold
of 3% of registered voters within the relevant geographic region). Erard's objection is thus
without merit.
16

2.

Discrimination against the Socialist Party

Another theory Erard advances is that Michigan's ballot-access laws discriminate
against the Socialist Party vis-a-vis other minor parties because ancillary voting regulations
make it more difficult to gain ballot now than in past years. Pl.'s Objections 33–38. Erard
explains that the four minor parties in Michigan qualifying to appear on the ballot between
the years 1998 and 2000 did not face the same restrictions on campaign donations and the
same disclosure requirements as the Socialist Party. Id. at 33–36. He adds that the four
minor parties also had to collect approximately 2,000 fewer signatures to appear on the
ballot. Id. at 36–39. The magistrate has already rejected these arguments, and the Court
agrees that they lack merit.
By claiming that the Socialist Party is presently subject to more onerous restrictions
than other minor parties were in the past, Erard overlooks that the signature requirement
has been the same since 1988. Minor parties qualifying for ballot during the 1998 and 2000
election cycles were subject to the same qualification standard as the Socialist Party today.
The only reason that new parties must now collect 2,000 or so more signatures is that the
number of voters has increased. The fact, however, of this demographic change does not
make the law discriminatory. After all, if the number of voters has increased, it is likely that
the pool of eligible signers and potential Socialist Party supporters has as well.
Furthermore, the only way to eliminate "discrimination" due to fluctuations in voter turnout
would be to adopt a system that regulates ballot-access using fixed numerical thresholds.
But the Constitution does not mandate that type of system. And the Supreme Court has
upheld state voting laws that use percentages to regulate ballot-access. See Am. Party of
Texas, 415 U.S. 767; Jenness, 403 U.S. 431.
17

Erard also fails to persuade that other laws somehow make the ballot-access
requirements discriminatory. Like the Socialist Party, other minor parties are subject to the
same financing and disclosure requirements. And like the Socialist Party, other minor
parties must annually requalify for ballot access. In short, Michigan treats minor parties the
same.
Moreover, as the magistrate observed, the complaint lacks allegations showing that
the campaign-finance regulations have disproportionately affected the Socialist Party's
operations. Report 62–63. There is, for instance, no allegation that, compared to other
minor parties, a significantly greater portion of the Socialist Party's funding would come
from corporate sources on which political parties can no longer rely.
C.

First Amendment Theory

While rejecting Erard's discrimination arguments, the magistrate writes that Michigan's
ballot-access requirements and related regulation severely burden his First Amendment
rights as applied to the Socialist Party, because the mandatory petition language hampers
its signature collection and because Michigan severely restricts the pool of petition signers.
The magistrate also concludes that the resulting burden is unconstitutional. The Secretary
objects to the magistrate's characterization of both the severity and constitutionality of the
burden. The Court agrees with the Secretary that the claim should be dismissed.
1.

Burden Imposed

The burden on Erard's rights is not severe. As the magistrate aptly observes,
Supreme Court precedent shows that the number of signatures the Socialist Party must
collect, the time limits on signature collection, and the limited monetary resources of the
Socialist Party do not individually or collectively constitute a severe burden on Erard's First
18

Amendment rights. Report 35–44. Because Erard has not filed "specific written objections"
to the magistrate's conclusion, Fed. R. Civ. P. 72(b), the Court adopts that portion of the
magistrate's analysis. The Court, however, differs regarding the magistrate's treatment of
the mandatory petition language and circulator eligibility requirements.
a.

Mandatory Petition Language

Although the magistrate writes that the mandatory petition language is not facially
unconstitutional — a conclusion to which neither Erard nor the Court objects — the
magistrate believes that the petition language makes it difficult for the Socialist Party to gain
ballot access. Report 47–48. The problem, she explains, is that potential signatories fear
being publicly associated with the Socialist Party. Id. While that is a fair description of
Erard's complaint, the magistrate errs by assuming that the petition language is the
obstacle to obtaining signatures.
The reason registered voters refused to sign the Socialist Party's petition for ballot
access is that they feared the ramifications of "publically documented (and formatively
initiatory) association with socialist or politically radical organizing." Am. Compl. ¶ 99. For
as the complaint explains, those who have publically associated with fringe political
organizations have been subject to government surveillance and private harassment. Am.
Compl. ¶¶ 99–110.
Apparently, this is why attendees at an Occupy Detroit demonstration were reluctant
to sign a petition to place the Socialist Party on the ballot. As Erard recounts, they were
reluctant to sign because they assumed "that signing the Socialist Party’s petition (as
requisitely worded) would pose a greater risk of causing them to become adversely labeled
in association with politically radical involvement than would their own active and
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self-initiated involvement" in the Occupy Detroit demonstration. Am. Compl. ¶ 99 n.122
(emphasis modified from original). Although the magistrate takes this passage as evidence
that the petition language is faulty, a more faithful reading of the complaint is that people
declined to sign the petition lest they risk harassment by publically documenting their
association with the Socialist Party.
Strengthening this conclusion is the absence of any plausible explanation of how the
petition language specially burdens the Socialist Party. In a response brief, Erard argues
that registered voters will invariably view the petition language as requiring them to make
a "permanent commitment" to the Socialist Party. Pl.'s Resp. to Objections 15. But as the
magistrate explains, it is unlikely that reasonable persons will understand the petition
language in that way — a conclusion to which Erard did not object. Report 43–46.
Because the reason for potential signatories' reluctance is that they must publicly
document their sympathies with the Socialist Party, the mandatory petition language
imposes no greater burden on the Socialist Party than other political parties. Erard's real
argument is with the requirement that voters must sign the petition. But he identifies no
authority intimating that a public signature requirement is a substantial burden.
b.

Circulator Eligibility Requirements

Likewise, the burden created by the circulator eligibility requirements is much less
onerous than either the magistrate or Erard supposes. Of course, the Court recognizes that
state laws preventing non-residents from circulating petitions tends to burden First
Amendment rights. See Nader v. Blackwell, 545 F.3d 459, 473–75 (6th Cir. 2008). But the
passage of Public Act 94 alleviates the burden resulting from Michigan's prior requirement
that those circulating petitions be registered Michigan voters. Since April 3, 2014, the
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Socialist Party has been able to use both residents and non-residents for circulating
petitions.
Erard replies, however, that this change comes too late to affect the outcome of his
lawsuit. Although the change comes halfway through the last 180-day period for collecting
signatures prior to the November 2014 election, the timing of the legislation still gave Erard
76 days to use non-resident volunteers to collect signatures ahead of the deadline for
submitting a petition on June 17, 2014. The loss of 114 days is significant but not so
significant as to create a severe burden on his constitutional rights considering that the
Supreme Court has approved of legislation requiring parties to reach similar or higher
qualification thresholds within much shorter circulation periods. See Storer, 415 U.S. at 740
(stating that by itself a law requiring parties to collect signatures equal to 5% of registered
voters in 24 days would not create a severe burden); Am. Party of Texas, 415 U.S. 782–88
(approving of a 55-day period for circulating supplemental petitions designed to obtain
signatures of 1% of registered voters). Moreover, the change comes in time to allow Erard
to take advantage of warmer spring and summer weather, which he deems important to
collecting signatures.
2.

State Justification

Because Michigan's revamped requirements do not individually or collectively
severely burden Erard's constitutional rights as applied to him, strict scrutiny does not
apply. Although a state must still have some rationale for making even reasonable,
nondiscriminatory regulations, the state's interest in regulating elections will generally justify
them. Libertarian Party of Ohio, 462 F.3d at 586 (citing Burdick, 504 U.S. at 434). Here, a
number of important interests, like ensuring the integrity of elections, avoiding the clogging
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of voting machinery, and preventing voter confusion, support the regulations Michigan has
enacted. See Timmons, 520 U.S. at 364–65; Am. Party of Texas, 415 U.S. at 781–82 &
n.14; Jenness, 403 U.S. at 442. Therefore, the Court will dismiss Erard's First Amendment
claim.
IV.

Purity of Elections Clause
Erard also objects to the magistrate's recommendation to dismiss the claim that the

ballot-access regulations violate the Michigan Purity of Elections Clause. The Court will
overrule his objections.
The Michigan Constitution charges the legislature with enacting laws that "preserve
the purity of elections." Mich. Const. of 1963 art. II, § 4. Although of broad dimensions, the
Purity of Elections Clause at minimum requires "fairness and evenhandedness in the
election laws" of the state. Socialist Workers Party v. Secretary of State, 412 Mich. 571,
598 (1982); see also Wells v. Kent Cnty. Bd. of Election Comm'rs, 382 Mich. 112, 123
(1969). Echoing his equal protection arguments, Erard argues that the Michigan's election
laws violate the Purity of Elections Clause by requiring new parties to demonstrate twice
the voter support as established parties. Pl.'s Objection 40–44..
As discussed above, it is far from apparent that Michigan law treats similarly situated
parties differently. New and established political parties may qualify for the ballot in different
ways, but just as different routes to the ballot are not necessarily discriminatory, they are
not necessarily unfair. The Purity of Elections Clause permits — and may even require —
Michigan to treat political candidates differently based on varying levels of voter support.
Jacobs v. Headlee, 135 Mich. App. 167, 177 (1984) (upholding differential funding for
candidates based on varying levels of voter support). This principle, in turn, suggests the
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corollary that Michigan is not required to gauge voter support identically for candidates in
different positions. Of course, some methods of calculating voter support may offend the
Michigan Constitution. But giving due respect to the legislature, which is entrusted with the
power to regulate the purity of elections, see Gracey v. Grosse Pointe Farms Clerk, 182
Mich. App. 193, 205 (1989), the Court cannot say that it is unfair for the Michigan
legislature to qualify new and established parties differently given that the legislature could
reasonably conclude that a vote in favor of a party reflects a greater showing of support
than a signature on a petition.
V.

Derivative Claims
Finally, the Court will dismiss Erard's derivative claims because the federal and state

claims on which they rest lack merit.
ORDER
WHEREFORE, it is hereby ORDERED that the Report (document no. 55) is
ADOPTED IN PART.
IT IS FURTHER ORDERED that the Secretary's motion to dismiss (document no. 46)
is GRANTED and that Erard's complaint is DISMISSED WITH PREJUDICE.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: May 14, 2014

I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 14, 2014, by electronic and/or ordinary mail.

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s/Carol Cohron
Case Manager

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