Moore et al v. Johnson et al

Filing 35

ORDER Granting Plaintiffs' 15 Motion for Injunctive Relief. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDNA MOORE, et al.,
Plaintiffs,

Case No. 14-11903
Hon. Matthew F. Leitman

v.
RUTH JOHNSON, et al.,
Defendants.
____________________________/
ORDER GRANTING PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF

Factual Background
Plaintiff John Conyers, Jr., (“Congressman Conyers” or “Mr. Conyers”) is a
member of the United States House of Representatives. He desires to seek election
to another term in office. In order to qualify for placement on the August 2014
primary election ballot, Michigan law requires Congressman Conyers to submit
nominating petitions to the Wayne County Clerk, Cathy Garrett (“Clerk Garrett”),
containing at least 1,000 valid signatures of registered Michigan voters who reside
in his congressional district.

See MCL §§ 168.133, 168.544f.

Mr. Conyers

submitted nominating petitions containing more than 2,000 signatures (see ECF
#1-1 at 1), but Clerk Garrett ultimately issued a Final Determination (see ECF #15-

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2) disqualifying 1,408 of those signatures, leaving Congressman Conyers short of
the 1,000 signatures he needs to be placed on the primary election ballot.
More than 600 of the signatures were disqualified pursuant to Section
544c(3) of the Michigan Election Law. See MCL § 168.544c(3). That statutory
provision (hereinafter referred to as the “Registration Statute”) requires (a) that
“[a]t the time of circulation,” a person circulating a petition to place a candidate on
a primary ballot for the United States House of Representatives (and certain other
offices), “shall be a registered elector of this state” and (b) that “[a]t the time of
executing the certificate of circulator, the circulator shall be registered [to vote] in
the city or township indicated in the certificate of circulator on the petition.”1 Id.
Clerk Garrett determined that Mr. Conyers had only 592 valid signatures, not
enough to qualify for placement on the primary election ballot. (See ECF #15-2 at
5.)
Pursuant to Section 552(6) of the Michigan Election Law, on May 16, 2014,
Mr. Conyers appealed Clerk Garrett’s Final Determination to Secretary of State
Ruth Johnson (“Secretary Johnson” or the “Secretary”). See MCL § 168.552(6).

1

The term “Registration Statute” used herein refers to the following language from
the statute: “At the time of circulation, the circulator of a petition shall be a
registered elector of this state. At the time of executing the certificate of circulator,
the circulator shall be registered in the city or township indicated in the certificate
of circulator on the petition.” The final sentence of MCL § 168.544c(3), not
reprinted here, is not at issue in this case and is not included in the definition of
“Registration Statute” as used in this Order. 
2

In a ruling dated May 23, 2014, Secretary Johnson found “that Wayne County
Clerk Cathy Garrett correctly determined that Congressman Conyers’ failure to
submit a minimum of 1,000 valid signatures renders him ineligible to appear on the
August 5, 2014 primary election ballot.” (ECF #34 at 1.) Secretary Johnson
determined that Mr. Conyers submitted 455 valid signatures. (Id. at 7.)

She

disqualified 367 otherwise valid signatures under the provision of the Registration
Statute which requires that “[a]t the time of circulation,” a person circulating a
petition to place a candidate on a primary ballot for the United States House of
Representatives (and certain other offices), “shall be a registered elector of this
state.” (Id.) She disqualified another 398 otherwise valid signatures under the
provision of the Registration Statute which provides that “[a]t the time of
executing the certificate of circulator, the circulator shall be registered [to vote] in
the city or township indicated in the certificate of circulator on the petition.” (Id.)
Thus, she excluded a total of 765 signatures for violation of the Registration
Statute.

Secretary Johnson specifically concluded that if the 765 signatures

excluded under the Registration Statute were counted as valid, Mr. Conyers would
have a total of 1,220 signatures – more than enough to qualify for placement on the
ballot. (Id.)

Under Secretary Johnson’s ruling, Mr. Conyers lacks sufficient

nominating signatures and will not be placed on the primary election ballot.

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Procedural History
In this action, Mr. Conyers and the other plaintiffs (two of the petition
circulators whose petitions were disqualified pursuant to the Registration Statute
and one of Mr. Conyers’ constituents who desires to vote for him in the primary
election) argue that the Registration Statute, as applied, impermissibly infringes
upon their First Amendment ballot access and associational rights. (See Am.
Comp., ECF #12 at ¶80.)

They also contend that the statute is overbroad and

invalid on its face. (Id. at ¶79.)

On May 15, 2014, Plaintiffs filed a motion for

temporary restraining order and/or preliminary injunction. (See ECF #15.) In their
motion, Plaintiffs seek entry of an order (a) enjoining Clerk Garrett and Secretary
Johnson from enforcing the Registration Statute and (b) requiring Defendants to
place Mr. Conyers on the August 2014 primary election ballot. In the alternative,
they ask the Court to compel Clerk Garrett and Secretary Johnson to re-examine
Congressman Conyers’ nominating petitions and to re-tabulate the number of valid
signatures thereon without excluding any signatures pursuant to the Registration
Statute. (Id. at 1.)
The Court held a hearing on Plaintiffs’ motion on May 21, 2014. Without
objection from any party, and because all parties had notice and were able to
submit briefs, the Court treated Plaintiffs’ motion as one for a preliminary
injunction.

The parties were also given an opportunity to present witness

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testimony and otherwise supplement the record; they declined.

The hearing

therefore consisted entirely of legal arguments by counsel, including counsel for
amici curiae Reverend Horace Sheffield, III (“Rev. Sheffield”), a candidate for the
Congressional seat currently held by Mr. Conyers, and Rev. Sheffield’s campaign
manager Richard Jones (“Jones”) (collectively “Amici”).
On May 15, 2014, the Wayne County Election Commission moved to
intervene in this action. (See ECF #23.) That body represented that it “prepares
the official ballots…”

(Id.)

The Court granted the Wayne County Election

Commission’s motion to intervene on May 22, 2014. (See Docket.)
At the time of the hearing, Secretary Johnson had not yet issued her ruling
on Mr. Conyers’ appeal of Clerk Garrett’s Final Determination.

Counsel for

Secretary Johnson asked the Court to delay its ruling until Secretary Johnson
issued her ruling, and counsel told the Court that the ruling would be issued not
later than noon today. The Court agreed to delay its ruling on the motion until
after the Secretary issued her decision. As noted above, Secretary Johnson has
now ruled, and the Court will do the same.
The Court’s ruling is memorialized in this order; the Court is not issuing an
Opinion at this time. Because time is of the essence, the Court believes it is
essential to issue this order now – prior to issuance of a supporting Opinion – in
order to provide any party who may wish to appeal as much time as possible in

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which to do so and in order to maximize the time in which the United States Court
of Appeals for the Sixth Circuit may have to review any possible appeal. The
Court will issue an Opinion explaining in greater detail its reasoning on some of
the matters discussed below as soon as possible. The Court has made completion
of this supporting Opinion its highest priority.
Analysis
Before turning to the merits of the injunction request, the Court must address
the Defendants’ standing and mootness arguments because those arguments
concern the Court’s subject-matter jurisdiction.
Standing
Clerk Garrett and Secretary Johnson argue that Plaintiff Moore (the citizen
who wants to vote for Mr. Conyers in the August primary) and Plaintiffs WillisPittman and Terry (the circulators whose petitions were disqualified pursuant to the
Registration Statute) lack standing. Notably, neither Clerk Garrett nor Secretary
Johnson contest Mr. Conyers’ standing, and thus, even if the Court accepted their
standing challenges, at least one plaintiff with standing to seek the requested relief
would remain.2

2

Secretary Johnson initially argued in her filings that all Plaintiffs would lack
standing to assert claims against her until she completed her review of Mr.
Conyers’ appeal. She has now completed the review, and thus that challenge to
standing no longer exists.
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The Court rejects the standing attacks. In order to have standing, a plaintiff
must demonstrate an injury in fact; causation between the injury and the
defendants’ conduct; and redressability – a likelihood that the requested relief will
redress the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992).

Plaintiffs Willis-Pittman and Terry (the circulators) satisfy these

requirements. They suffered an injury when the signatures they gathered were
disqualified; Clerk Garrett initially inflicted the injury and Secretary Johnson
continued, and declined to exercise her authority to remedy, the injury; and an
injunction placing Mr. Conyers on the ballot would redress the injury.
Whether Plaintiff Moore has standing as a Conyers supporter is a closer
question, but this Court concludes that she does have such standing. She has
expressed a specific and credible interest in voting for Mr. Conyers in the August
primary. That gives her standing to challenge the application of the Registration
Statute that is preventing Mr. Conyers from appearing on the ballot. See, e.g.,
Miyazawa v. City of Cincinnati, 45 F.3d 126, 128 (6th Cir. 1995); Young v. Illinois
State Board of Elections, 116 F.Supp.2d 977, 980 (N.D. Ill. 2000) (“Baruth is a
registered voter in the 64th district and, in connection with the preliminary
injunction motion, has filed an affidavit stating that he wishes to vote for Young.
Thus, if Young's name is stricken from the ballot, Baruth's right to support the

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candidate of his choice is hindered. Thus, he has standing to challenge the
constitutionality of § 10–4 which is precluding Young's inclusion on the ballot”).
Mootness
Secretary Johnson and Clerk Garrett argued that Plaintiffs’ claims could
become moot based on the results of Secretary Johnson’s review of Mr. Conyers’
appeal – if for, instance, the Secretary accepted Mr. Conyers’ arguments, and he
was placed on the ballot, or if she found reasons wholly apart from the Registration
Statute to exclude Mr. Conyers from the ballot. The Secretary has completed her
review, and her decision has not mooted Plaintiffs’ claims. Mr. Conyers remains
excluded from the ballot by operation of the Registration Statute.
Injunction Factors
When a court considers a motion for a preliminary injunction, it must weigh
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 the
issuance of the injunction would cause substantial harm
to others; and (4) whether the public interest would be
served by the issuance of the injunction.
Certified Restoration v. Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d
535, 542 (6th Cir. 2007). Courts are generally required to balance these four
factors, and none of the factors, standing alone, is a prerequisite to relief. Golden
v. Kelsey-Hayes, Co., 73 F.3d 648, 653 (6th Cir. 1996). However, when “a party
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seeks a preliminary injunction on the potential violation of the First Amendment,
the likelihood of success on the merits often will be the determinative factor.”
Libertarian Party of Ohio v. Husted, – F.3d –, 2014 WL 1703856 at *8 (6th Cir.
May 1, 2014), quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th
Cir. 1998).
Plaintiffs here have shown a substantial likelihood of success.

The

Registration Statute is, in all material respects, indistinguishable from the statute
held facially invalid by the United States Court of Appeals for the Sixth Circuit in
Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008).3 The Sixth Circuit in Nader
held that it was “undisputable” that the plaintiff suffered a serious limitation on his
First Amendment rights – a limitation triggering application of strict scrutiny –
when the statute was applied so as to disqualify signatures gathered by nonregistered voters and to keep the candidate off the ballot. Id. at 475, 478. That is
exactly what happened in this case. The Registration Statute was applied so as to

3

The statute at issue in Nader stated that “[n]o person shall be entitled to ...
circulate any declaration of candidacy or any nominating, or recall petition, unless
the person is registered as an elector and will have resided in the county and
precinct where the person is registered for at least thirty days at the time of the next
election.” Ohio Rev. Code § 3503.06. That statute has both a residency and a
registration requirement while the Registration Statute, on its face, says nothing
about residency. However, as Secretary Johnson conceded at the hearing on
Plaintiffs’ motion, only Michigan residents may register to vote in Michigan. See
also MCL § 168.492. Thus, the Registration Statute effectively imposes both a
registration requirement and a residency requirement and, in that regard, is
indistinguishable from the statute at issue in Nader.
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disqualify Mr. Conyers’ signatures and keep him off the ballot. Nader holds that
this amounts to a severe burden on Mr. Conyers’ First Amendment rights and
requires the application of strict scrutiny. Id. at 475, 478. The reasoning of Nader
also compels the conclusion that application of the Registration Statute severely
burdened the First Amendment rights of the Plaintiffs who gathered the signatures
that were disqualified.
The Registration Statute cannot survive strict scrutiny because it is not
narrowly tailored to serve a compelling state interest. The State’s asserted interest
is detecting and preventing election fraud. (See, e.g., ECF #27 at 25, where
Secretary Johnson argues that “if strict scrutiny is required, the burden on Plaintiffs
is justified by the State’s compelling interest in preventing fraud.”) Requiring
circulators to register, Secretary Johnson contends, helps to combat fraud because
the State knows where to find a registered voter “if questions arise regarding the
validity or genuineness of signatures” (id.), and the State has the ability to
subpoena a registered voter to provide testimony, if needed, in an investigation or
prosecution of election fraud.
The State’s interest in combatting election fraud is compelling, but the State
may protect that interest through a less restrictive means. In particular, the State
may require a petition circulator to “accept the jurisdiction of this State for the
purpose of any legal proceeding or hearing initiated … that concerns a petition

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sheet executed by the circulator” and require that the circulator agree “that legal
process served on the secretary of state or a designated agent of the secretary of
state has the same effect as if personally served on the circulator.”

MCL §

168.544c(4), as amended by Public Act 94 of 2014, effective April 3, 2014. In
fact, that is exactly what the State did earlier this year with respect to individuals
wishing to circulate petitions for referenda, constitutional amendments, and certain
political offices elected statewide, including President of the United States and the
United States Senate. It eliminated the need for these petitioners to be registered
voters. See id.
This is a common way of combatting election fraud that federal courts have
“generally looked [on] with favor.” Libertarian Party of Virginia v. Judd, 718
F.3d 308, 318 (4th Cir. 2013) (collecting cases).

It is far less restrictive than

requiring circulators to be registered voters because it does not categorically
eliminate anyone from the pool of possible circulators. Because the State could
plainly achieve its compelling interest in preventing election fraud through this less
restrictive means, the Registration Statute cannot survive strict scrutiny.
In addition to being compelled by Nader, the Court’s conclusions that the
Registration Statute is subject to strict scrutiny and that it cannot survive such
scrutiny are consistent with the “general agreement” amongst the circuit courts of

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appeals that these statutes “merit the closest examination” and cannot survive that
level of review. Judd, 718 F.3d at 316-17 (collecting cases).
At the motion hearing, Secretary Johnson argued for the first time that the
Court should consider separately the constitutionality of (1) the first sentence of
the Registration Statute which provides that “[a]t the time of circulation, the
circulator of a petition shall be a registered elector” and (2) the second sentence
which provides that “[a]t the time of executing the certificate of circulator, the
circulator shall be registered in the city or township indicated in the certificate of
circulator on the petition.”

The Secretary suggested that even if the registration

requirement in the first sentence is unconstitutional, the second sentence should be
upheld as a valid “disclosure” provision under Libertarian Party of Ohio, supra.
But the second sentence – which incorporates the mandatory “shall be registered”
language from the first sentence – unambiguously imposes its own substantive
registration requirement; it is not a mere “disclosure” provision. Indeed, the two
sentences impose separate registration requirements that apply at different times.
The first sentence requires a circulator to be registered “at the time of circulation,”
and the second sentence requires a circulator to be registered at a different time:

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namely, “at the time of executing the certificate of circulator.” Both sentences
independently require registration – a condition that is unconstitutional.4
As to irreparable injury, “it is well-settled that loss of First Amendment
freedoms, even for minimal periods of time, unquestionably constitutes irreparable
injury.” Libertarian Party of Ohio, 2014 WL 1703856 at *9, citing Connection
Distrib. Co., 154 F.3d at 288. See also ACLU of Kentucky v. McCreary County,
354 F.3d 438, 445 (6th Cir. 2003) (“[W]hen reviewing a motion for a preliminary
injunction, if it is found that a constitutional right is being threatened or impaired, a
finding of irreparable injury is mandated”), citing Elrod v. Burns, 427 U.S. 347,
373 (1976). As noted above, application of the Registration Statute to Plaintiffs
likely violates their First Amendment Rights.

Thus Plaintiffs satisfy this

requirement for an injunction.
On the issue of harm to others, when a plaintiff demonstrates “a substantial
likelihood that a challenged law is unconstitutional, no substantial harm can be said
to inhere in its enjoinment.” Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville,

4

The Secretary’s reading of the statute – allowing the second sentence to stand
alone – would lead to the anomalous result that circulators who are registered
voters would have to list a correct registered address in order to have their petitions
counted, but circulators who were not registered would not have to list any contact
information at all. That cannot be what the Legislature intended when it enacted
the Registration Statute. What the Secretary understandably desires is a statute that
requires all circulators to list a valid address at which they may be contacted. The
enactment of such a statute is a task for the Michigan Legislature, not for this
Court which lacks the power to re-write state laws in a manner that does not
readily comport with the intent of the Legislature. 
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274 F.3d 377, 400 (6th Cir. 2001), citing Connection Distrib. Co., 154 F.3d at 288.
Moreover, there is scant evidence that the issuance of an injunction in this case
would cause harm to others. Despite broad claims to the contrary, (see, e.g., ECF
#28 at 31 (“[b]allot preparations has begun”)), Clerk Garrett and Secretary Johnson
have submitted virtually no evidence that they (or the Wayne County Election
Commission, whose motion to intervene as a defendant the Court granted on May
22, 2014 (see Docket)) have expended a material amount of time or resources on
printing ballots or performing other substantial election preparations. Nor have
they shown that they lack sufficient time to comply with the injunction issued
today. Indeed, the claim that this injunction comes too late in the process rings
quite hollow in light of the fact that Secretary Johnson was originally planning to
complete her review of Mr. Conyers’ appeal – the result of which could have
impacted the laying out and printing of the ballots – next week (i.e., several days
after this injunction is issued). It was only after the Court pressed the Secretary to
issue her decision earlier that she committed to rule by noon on May 23. This
injunction issues the same day that the Secretary renders her decision.

The

Secretary has no basis to claim that the timing of this injunction creates an undue
hardship on election officials.
Finally, Amici argue that the requested injunction would be unfair to Mr.
Conyers’ opponents. They insist that an injunction compelling the counting of

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signatures gathered by unregistered voters on behalf of Mr. Conyers would provide
Mr. Conyers an advantage no other candidate had. But Amici offer no evidence
that they would have used unregistered voters to gather signatures if they had been
permitted to do so. They similarly offer no evidence that their use of registered
voters disadvantaged them in any way – by, for instance, requiring them to spend
more time or money gathering signatures. They have thus failed to show that the
requested relief would give Mr. Conyers an unfair advantage over them.
As to the final factor, “[i]t is always in the public interest to prevent a
violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Michigan Liquor
Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994), citing Gannett Co., Inc. v.
DePasquale, 443 U.S. 368, 383 (1979).

Secretary Johnson counters that

“midstream changes are confusing to candidates and voters alike.” (See ECF #27
at 28). However, Defendants have offered no evidence of voter confusion. The
public interest favors the enjoining of the likely unconstitutional Registration
Statute.
Laches
Clerk Garrett and Amici argue that the request for injunctive relief is barred
by the equitable doctrine of laches. A party asserting laches must show: (1) a lack
of diligence by the party against whom the defense is asserted and (2) prejudice to
the party asserting it. See E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436, 439

15

(6th Cir. 2006), citing Brown-Graves Co. v. Central States, Southeast & Southwest
Areas Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000). Neither element is
satisfied here.
At least with respect to Plaintiffs Willis-Pittman and Terry, there is evidence
that their failure to comply with the Registration Statute was the result of goodfaith mistakes and that they believed they were in compliance with the statute. (See
ECF #15-4 at ¶ 9-10; #15-3 at ¶ 13-17). At the eleventh hour, Secretary Johnson
submitted some evidence that suggests that Ms. Terry should have been aware of
that she was not in compliance with the statute (ECF #34), but at this point, the
Court is not prepared to hold that her claims are barred by laches.
Moreover, there is no evidence that Plaintiff Moore (the Conyers constituent
who wishes to vote for him) knew, prior to the recent disqualification of Mr.
Conyers’ petitions that any signatures could be in jeopardy under the Registration
Statute. She had no reason to file this action before Mr. Conyers’ disqualification
from the primary election ballot. And the Court does not believe that Mr. Conyers
unreasonably delayed in filing this action. While he may have known about the
Registration Statute for some time, he had no reason to file this action until the
statute was invoked against him.
Furthermore, and in any event, any delay in filing suit has not sufficiently
prejudiced anyone to warrant denial of the requested relief. As noted above, while

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the issuance of the injunction at this point may create some pressure on election
officials, there is no evidence that the terms of the injunction impose an
unreasonable burden upon them. Likewise, as noted above, Amici have failed
establish that the injunction would prejudice them because they have presented no
evidence that they would have done anything differently had they been allowed to
rely on signatures gathered by unregistered voters – as the injunction allows Mr.
Conyers to do.
Perry v. Judd, 840 F.Supp.2d 945 (E.D. Virginia 2012), aff’d 471 Fed.
App’x. 219 (4th Cir. 2012), the primary laches case relied upon by Clerk Garrett
and Amici, is easily distinguishable. In that case, presidential candidate Rick Perry
attempted to gather a sufficient number of signatures to secure placement on the
Virginia ballot. He failed. He then filed a lawsuit challenging the constitutionality
of a Virginia statute requiring petition circulators to be registered voters. He
sought an injunction barring enforcement of the statute and compelling Virginia
election authorities to place him on the ballot.

The district court denied the

motion. The court stressed that Perry was asking the court to assume that he would
have gathered enough signatures if had he been able to use non-registered
circulators. Perry, 840 F.Supp.2d at 955. The court was unwilling to assume that
Perry had sufficient support among Virginia voters to earn a place on the ballot. Id.
Here, in sharp contrast, Mr. Conyers actually gathered more than enough valid

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signatures to secure a spot on the ballot. Unlike in Perry, the Court need not
speculate as to whether he has sufficient voter support to deserve a spot on the
ballot. Moreover, the election officials in Perry had already begun printing the
ballots at the time the Fourth Circuit affirmed the denial of relief. Perry, 471 Fed.
App’x. at 227. That is not the case here. Any reliance on Perry is misplaced, and
the laches defense fails.
Abstention
Defendants argue that this Court should abstain from adjudicating Plaintiffs’
claims under the abstention doctrines of Burford v. Sun Oil Co., 319 U.S. 315
(1943) and Younger v. Harris, 401 U.S. 37 (1971). Abstention is not warranted
under either doctrine.

A Burford abstention would be inappropriate because,

among other things, this action does not involve a difficult question of state law
and because no ruling by this Court would disrupt state efforts to establish a
coherent policy on a matter of substantial public concern. See New Orleans Pub.
Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (outlining
criteria for Burford abstention). Moreover, a Burford abstention is particularly
inappropriate in cases involving facial challenges based on the First Amendment.
See Bogaert v. Land, 675 F.Supp.2d 742, 747 (W.D. Mich. 2009) (collecting
cases).

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Nor is a Younger abstention is warranted.

This case does not fit into the

Younger doctrine as clarified and limited by the Supreme Court in the recent
decision in Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584 (2013). In that
case, the Supreme Court stressed that “circumstances fitting within the Younger
doctrine … are exceptional.” Id. at 588 (internal citation omitted). Younger applies
only to a request to issue an injunction in connection with a state criminal
prosecution, a state “civil proceeding[] involving certain orders ... uniquely in
furtherance of the state courts' ability to perform their judicial functions,” or a
“state civil proceeding[] that [is] akin to [a] criminal prosecution[].”Id (internal
citations omitted). Plaintiffs’ requested injunctive relief would not interfere with
such a proceeding, so Younger is no bar to that relief.
Unclean Hands
Amici argue that Plaintiffs’ claims are barred by the equitable doctrine of
unclean hands. There is insufficient evidence in the record that any Plaintiff
knowingly and intentionally engaged in improper conduct that would warrant
application of this doctrine. The Court chooses not to apply this equitable doctrine.
Purity of Elections
Amici argue that granting an injunction would upset the “purity of elections”
guaranteed by Article II, Section 4 of the Michigan Constitution. (See ECF #25 at
26-27.) This provision states that “[t]he legislature shall enact laws to preserve the

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purity of elections, to preserve the secrecy of the ballot, to guard against abuses of
the elective franchise, and to provide for a system of voter registration and
absentee voting.” Const. 1963, Art. II, § 4. But Amici have presented no evidence
that the requested injunction would in any way undermine the fairness and “purity”
of the process such that the “purity of elections” clause would be implicated. And
even if the clause were somehow at play here, it would, of course, have to give
way to the First Amendment under the Supremacy Clause of the United States
Constitution.
Security Bond
Rule 65(c) provides that “[t]he court may issue a preliminary injunction ...
only if the movant gives security in an amount that the court considers proper to
pay the costs and damages sustained by any party found to have been wrongfully
enjoined or restrained.” Fed. R. Civ. P. 65(c). “While ... the language of Rule 65(c)
appears to be mandatory, and many circuits have so interpreted it, the rule in our
circuit has long been that the district court possesses discretion over whether to
require the posting of security.” Moltan Co. v. Eagle–Picher Indus., Inc., 55 F.3d
1171, 1176 (6th Cir. 1995) (citing Roth v. Bank of the Commonwealth, 583 F.2d
527, 539 (6th Cir. 1978), and Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810, 815–
16 (6th Cir. 1954)). No party here has sought a security bond, and the Court
concludes that no security bond is necessary. See Bogaert v. Land, 572 F. Supp.

20

2d 883, 906 (W.D. Mich. 2008) (granting preliminary injunction enjoining
enforcement of statute requiring recall petition circulators be registered voters and
declining to require posting of security bond).
Conclusion
The factors relevant to the issuance of injunctive relief weigh in favor of
such relief here, and neither the Defendants nor Amici have offered arguments or
defenses sufficient to defeat the request for relief. As Secretary Johnson implicitly
acknowledged in her ruling issued today, if the signatures excluded pursuant to the
Registration Statute may not be excluded from Mr. Conyers’ total – and this Court
holds that they may not be – then Mr. Conyers has enough signatures to qualify for
placement on the ballot. He shall be placed on the ballot.
Preliminary Injunction
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for a preliminary
injunction, ECF #15, is GRANTED ONLY AS FOLLOWS.
IT IS ORDERED THAT the Wayne County Election Commission, having
intervened in, and become a party to, this action shall place Mr. Conyers on the
ballot for the August 2014 primary election. If and to the extent that the Wayne
County Election Commission requires any certification and/or determination from
Secretary Johnson and/or Clerk Garrett to place Mr. Conyers on the ballot as

21

directed above, Secretary Johnson and/or Clerk Garrett shall provide such
certification and/or determination by not later than 5:00 p.m. on Thursday, May 29,
2014.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: May 23, 2014

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on May 23, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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