Rhodes et al v. SNYDER

Filing 20

OPINION & ORDER Denying Plaintiffs' Motion for Preliminary Injunction (Dkt. 8 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEBRA RHODES, et al.,
Plaintiffs,

Case No. 17-cv-14186
HON. MARK A. GOLDSMITH

vs.
RICHARD D. SNYDER,
Defendant.
_______________________________/

OPINION & ORDER
DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (Dkt. 8)
Plaintiffs ask that this Court order Defendant Governor Richard Snyder to hold the
election to fill out the balance of Congressman John Conyers Jr.’s term on an earlier schedule
than the one the Governor established.

The United States Constitution requires a state’s

governor to call an election to fill vacancies in that state’s representation in the United States
House of Representatives, thereby ensuring that its “[m]embers [are] chosen . . . by the People of
the several States.” U.S. Const. art. I, § 2, cl. 1. But the Constitution accords considerable
deference to a governor in setting the election date. Having reviewed the extensive record
presented, this Court finds no evidence supporting Plaintiffs’ theory that Governor Snyder was
racially motivated or otherwise violated equal protection guarantees when he established dates
that coincide with the regularly scheduled election dates in August and November of this year.
Therefore, those dates will remain in effect.
I. BACKGROUND
This matter is before the Court on a motion for preliminary injunction (Dkt. 8) brought by
Plaintiffs Debra Rhodes, Gloria Mounger, Thomas Williams, Laura Dennis, and Vivian

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Wordlaw. Plaintiffs are registered voters in Michigan’s thirteenth Congressional district, a
district that has been without a representative in the U.S. House of Representatives since the
resignation of Congressman Conyers on December 5, 2017. Plaintiffs allege that Governor
Snyder’s decision to delay a special election until November 6, 2018, violates their equal
protection, due process, and voting rights under the Michigan and United States constitutions.
They now seek an order directing Governor Snyder to conduct a special election “as soon as
possible.” For the reasons stated below, the Court denies Plaintiffs’ motion for preliminary
injunction.
On December 5, 2017, Congressman Conyers resigned as Representative of Michigan’s
thirteenth Congressional district. Am. Compl. ¶ 20 (Dkt. 10). Three days later, Governor
Snyder called a special election to fill the vacant House seat. Id. ¶ 22. Governor Snyder stated
that the primary election would be held on August 7, 2018, while the general election would be
held on November 6, 2018; these dates correspond with the previously scheduled dates for the
primary and general elections for the 2018 state-wide races and congressional seats.

See

Conyers Election Call, Ex. 4 to Def. Resp., at 1-2 (Dkt. 11-5). The winner of this special
election will serve out the remainder of Congressman Conyers’s term, a period running from
November 7, 2018 until January 3, 2019.
Plaintiffs allege that this eleven-month delay between Congressman Conyers’s
resignation and the special general election, in a majority-black district, violates the Fourteenth
Amendment’s due process and equal protection clauses, and the corresponding provisions of the
Michigan Constitution. They also allege that this delay violates their right to vote under the
Fifteenth Amendment. Plaintiffs contrast the eleven-month delay with the four-month delay that
occurred when there was a vacancy in 2012 in Michigan’s eleventh congressional district, a

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majority-white district. They argue that the loss of the constitutional right to vote tips the
balance of harms in their favor; they also contend that a prompt special election is in the public
interest.
In response, Governor Snyder first argues that Plaintiffs’ claims are barred by the
equitable doctrine of laches, because Plaintiffs waited nearly two months after Congressman
Conyers’ resignation to file a motion for preliminary injunction. He also argues that Plaintiffs’
claims fail on the merits, because other congressional districts have been treated in a similar
manner when vacancies have arisen, and because the decision to fill the vacancy using the
previously scheduled primary and general elections dates does not unconstitutionally burden
their right to vote. With regard to the balance of harms, Governor Snyder argues that Plaintiffs
do not have a right to continuous, uninterrupted representation, and that an order compelling an
earlier election that does not coincide with other regularly scheduled elections would impose
significant costs and burden government employees. Finally, Governor Snyder argues that the
public interest does not weigh in favor of holding an earlier special election, asserting that as
long as the state complies with the constitutional requirement that a special election be held, the
public does not have any particular interest in when the election is held.
The Court held a hearing on Plaintiffs’ motion on March 15, 2018. It was at this hearing
that Plaintiffs’ counsel first specified the relief that Plaintiffs seek. While the motion merely
states that Plaintiffs ask that the special election be held “as soon as possible,” Plaintiffs’ counsel
stated at the hearing that Plaintiffs are seeking a special, standalone primary to be held within
fifty days, with the special general election to be held at the same time as the regularly scheduled
primaries on August 7, 2018.

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After hearing this proposal, the Court called Melissa Malerman, a senior election law
specialist with Michigan’s Secretary of State, to testify as to its feasibility. Malerman testified
that the requested fifty-day deadline to hold a standalone special primary was not possible. In a
subsequent declaration, Malerman states that, under Plaintiffs’ proposal, it is not possible to meet
the forty-five-day deadline for issuing ballots overseas voters, as required by the Uniformed and
Overseas Civilian Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301, et seq., without
violating several state statutes. Malerman Aff. II, Ex. 1 to Supp. Br., ¶ 12 (Dkt. 18-2). These
include allowing time for individuals to challenge nominating petitions and to file administrative
appeals, Mich. Comp. Laws § 168.552(2), and allowing candidates two business days to review
ballot proofs for completeness and accuracy, Mich. Comp. Laws § 168.565. Id.
Malerman also addressed the possibility of holding a standalone primary in June, stating
that compliance with certain statutory deadlines would be “extremely complicated and fraught
with the potential for error, or impossible.” Malerman Aff. II ¶ 14. Scheduling a primary on
June 5, 2018 would shorten the statutory deadline for candidates to file in order to ensure
compliance with the UOCAVA. Id. Mandating a June 12, 2018 primary would eliminate the
ability to file a challenge against the sufficiency of a candidate’s nominating petition. Id. A
June 19, 2018 primary would violate the statutory deadline to certify candidates to the August
ballot. Id. Finally, holding a June 26, 2018 would force Michigan to violate the UOCAVA. Id.
Malerman believes that, ideally, the state would need at least ninety days to comply with
statutory requirements, including allowing candidates to collect signatures, allow individuals to
challenge those signatures, and certifying and printing ballots. According to Malerman, even if
the standalone primary was held ninety days from now, there would still be a possibility that
certain statutory deadlines would be violated. However, she acknowledged that the state was

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able to schedule and conduct a standalone primary in September 2012, less than two months after
a vacancy occurred in Michigan’s eleventh congressional district.
II. STANDARD OF DECISION
To determine whether to grant a preliminary injunction, a district court must consider: (i)
the plaintiff’s likelihood of success on the merits; (ii) whether the plaintiff may suffer irreparable
harm absent the injunction; (iii) whether granting the injunction will cause substantial harm to
others; and (iv) the impact of its decision on the public interest. Hamad v. Woodcrest Condo.
Ass’n, 328 F.3d 224, 230 (6th Cir. 2003). These four factors “are factors to be balanced, not
prerequisites that must be met.” Id.
III. ANALYSIS
In their amended complaint, Plaintiffs allege violations of their due process, equal
protection, and voting rights. However, in their motion for preliminary injunction, Plaintiffs
only address the merits of their equal protection claim. As a result, the Court will only consider
whether the decision to delay the special election until November violates Plaintiffs’ equal
protection rights. Prior to consideration of this claim, the Court addresses an equitable defense
raised by Governor Snyder.
A. Likelihood of Success on the Merits
1. Laches
Governor Snyder first argues that Plaintiffs are unlikely to prevail on the merits because
their claims are barred by the doctrine of laches. “Where a plaintiff seeks solely equitable relief,
his action may be barred by the equitable defense of laches if (1) the plaintiff delayed
unreasonably in asserting his rights and (2) the defendant was prejudiced by this delay.” Am.
Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 647 (6th Cir. 2004). An examination

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of Sixth Circuit case law leads to the conclusion that Plaintiffs unreasonably delayed in asserting
their rights. In Kay v. Austin, 621 F.2d 809 (6th Cir. 1980), the court held that the plaintiff’s
suit, in which he sought to be named on the presidential primary ballot, was barred by laches
because he waited until twenty-five days after he knew the candidates had been chosen to file
suit. Id. at 813; contrast with Taft, 385 F.3d at 647 (finding no unreasonable delay where the
plaintiffs waited eleven days to file suit). Here, Plaintiffs filed suit on December 27, 2017,
nineteen days after Governor Snyder announced that the general election would not be held until
November 6, 2018. See Compl. (Dkt. 1); Conyers Election Call at 1-2. While it is questionable
whether this delay, standing alone, was unreasonable, Plaintiffs weakened their position by
waiting until February 2, 2018 to file the instant motion for preliminary injunction. Typically, in
an election matter, a motion for preliminary relief is filed simultaneously with the filing of the
complaint or shortly thereafter. Here, Plaintiffs inexplicably waited over five weeks after
initiating this action to move for relief.

As a result, the Court concludes that Plaintiffs

unreasonably delayed in prosecuting this action.
Despite this delay, it does not appear that the state has been prejudiced. In Kay, the court
found the action to be barred by laches where the state had already incurred significant costs in
preparation for the election at the time the plaintiff filed suit. Kay, 621 F.2d at 813. In Taft, the
court held that there was no prejudice because “there is no evidence that Governor Taft had
expended money or made alternate preparations during the delay.” Taft, 385 F.3d at 647.
Similarly, there is no evidence in the record that the state has already expended money in
preparation for the August primaries and the November general election.

While there is

evidence that altering the dates will cause municipalities to incur costs that they otherwise would

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not, Governor Snyder has not shown that any costs have already been incurred as a result of
Plaintiffs’ delay. Plaintiffs’ action is, therefore, not barred by laches.
2. Equal Protection
The Court next turns to the merits of Plaintiffs’ equal protection claim. They allege that
Governor Snyder has violated their equal protection rights because the decision to delay the
special election was racially motivated and burdened their fundamental right to vote. The Court
disagrees on both counts.
Article I of the Constitution addresses how vacancies in the House of Representatives are
to be filled: “When vacancies happen in the Representation from any State, the Executive
Authority thereof shall issue Writs of Elections to fill such Vacancies.” U.S. Const. art. I, § 2, cl.
4. Article I, Section four, Clause one makes clear that states are responsible for administering
the election of senators and representatives, providing that “[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the Place of chusing [sic] Senators.” Congress subsequently passed a law stating
that “[t]he time for holding elections in any State, District, or Territory for a Representative or
Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time
prescribed by law, or by the death, resignation, or incapacity of a person elected, may be
prescribed by the laws of the several States and Territories respectively.” 2 U.S.C. § 8. In Taft,
the Sixth Circuit ruled that Article I imposes a “mandatory duty” upon the governor of the state
where the House vacancy occurs to hold a special election. Taft, 385 F.3d at 650.

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In accordance with this mandate, Michigan has established a mechanism through which
the governor is to call a special election in the event of a vacancy. Mich. Comp. Laws § 168.633
states:
The governor shall call a special election in any congressional
district of the state when the right of office of a person elected
representative in congress shall cease before the commencement of
the term of service for which he shall have been elected, or
whenever a vacancy shall occur in the office of representative in
congress after the term of service has begun for which such
representative was elected; or the governor shall direct that such
vacancy shall be filled at the next general election to be held at
least 30 days after such vacancy shall occur.
This statute provides broad discretion to the governor. It does not contain any particular
requirement regarding when the special election is to be held; it only mandates that the governor
“shall call a special election” when a vacancy occurs. Relevant here, the statute expressly allows
the governor to schedule the special election “at the next general election,” provided that the
general election is held at least thirty days after the vacancy occurs.
It is clear that Governor Snyder is complying with statutory language. He has chosen to
hold the special election on the same day as the next general election; because the next general
election will occur more than thirty days after the House seat became vacant, he is within his
rights under the statute. Plaintiffs concede this point, and instead argue that Governor Snyder
engaged in “discriminatory application” of this law when he scheduled a special election eleven
months after the vacancy occurred, in violation of their rights under the Equal Protection Clause.
A review of the briefing indicates two distinct theories for relief under the Equal
Protection Clause: (i) Governor Snyder chose to delay the special election for eleven months on
the basis of race; and (ii) he has deprived constituents of the thirteenth district their fundamental
right to vote and to representation by leaving their congressional seat vacant for eleven months.

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With regard to the racial discrimination theory, Plaintiffs argue that discrimination can be
inferred by comparing Governor Snyder’s actions in this case with his actions following the
vacancy in Michigan’s eleventh congressional district in 2012. On July 8, 2012, Thaddeus
McCotter, then the Representative of Michigan’s eleventh congressional district, announced that
he was resigning his seat in the House. On July 10, 2018, Governor Snyder announced that he
was calling a special primary election for September 5, 2012; this primary was the only election
held on that date. See McCotter Election Call, Ex. 6 to Def. Resp., at 1-2 (Dkt. 11-7). Governor
Snyder also announced that the special general election would be held on November 6, 2012, the
same date as the previously-scheduled presidential and congressional races. Id. at 2. Plaintiffs
argue that this short, four-month delay between the call and the election in a majority-white
district demonstrates that Governor Snyder is racially discriminating against the majority-black
thirteenth district, where citizens are forced to wait eleven months for a special general election.
The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination by
the government that “burdens a fundamental right, targets a suspect class, or intentionally treats
one differently than others similarly situated without any rational basis for the difference.”
Loesel v. City of Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012) (quoting Rondigo, L.L.C. v.
Twp. of Richmond, 641 F.3d 673, 681–682 (6th Cir. 2011)).

While Plaintiffs argue that

discrimination can be proven by disparate impact, it is well-settled that the Equal Protection
Clause prohibits only intentional discrimination. Washington v. Davis, 426 U.S. 229, 239
(1976). To establish intentional discrimination, a showing must be made that the state official
acted with the purpose of creating an adverse impact on an identifiable group — not simply with
an awareness that adverse consequences would result from the state action:
“Discriminatory purpose” . . . implies more than intent as volition
or intent as awareness of consequences. It implies that the
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decisionmaker . . . selected or reaffirmed a course of action at least
in part “because of,” not merely “in spite of,” its adverse effects
upon an identifiable group.
Pers. Admin’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
The burden of demonstrating purposeful discrimination “is a heavy one to satisfy,”
Sampson v. Town of Salisbury, 441 F. Supp. 2d 271, 279 (D. Mass. 2006), and requires “a
sensitive inquiry into such circumstantial and direct evidence of intent as may be available,”
Rogers v. Lodge, 458 U.S. 613, 618 (1982). Without the proverbial “smoking gun of an overtly
discriminatory statement by a decisionmaker, it may be very difficult to offer sufficient proof of”
discriminatory purpose. Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir. 1997).
Plaintiffs proffer Governor Snyder’s actions in the eleventh district as circumstantial
evidence of discrimination, but this argument is not compelling. Both the similarities and
differences between Governor Snyder’s actions here and in the eleventh district weigh in his
favor. Starting with the differences, the vacancy in the eleventh district occurred in July of an
election year, while the vacancy here occurred in the December prior to the election year. Thus,
it cannot be said that Plaintiffs are similarly situated with those in eleventh district in 2012.
While Plaintiffs note the difference in the time that Governor Snyder allowed each seat to
remain vacant, this is by virtue of Governor Snyder’s clear preference to hold special elections in
conjunction with previously-scheduled elections. In both the present case and in the case of the
eleventh district, Governor Snyder chose to hold the special general election at the same time as
the regularly scheduled November elections.

Although he scheduled a standalone special

primary in September 2012 for the eleventh district, this was due to the State’s inability to
prepare for the August primaries following McCotter’s abrupt July resignation. See Malerman
Aff. II ¶ 28. In nearly every other vacancy brought to the Court’s attention, the evidence shows

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that Governor Snyder has scheduled one or both of the special primary and special general
elections at the same time as previously-scheduled elections. See Ananich Election Call, Ex. 8 to
Def. Resp., (Dkt. 11-9) (special primary and general); Courser Election Call, Ex. 9 to Def. Resp.,
at 1-2 (Dkt. 11-10) (special primary); Gamrat Election Call, Ex. 9 to Def. Resp, at 3-4 (Dkt. 1110) (special primary); Dillon Election Call, Ex. 9 to Def. Resp., at 5-6 (Dkt. 11-10) (special
primary); Banks Election Call, Ex. 10 to Def. Resp. at 1-2 (Dkt. 11-10) (special primary and
general); Kivela Election Call, Ex. 10 to Def. Resp., at 3-4 (special primary and general); Schor
Election Call, Ex. 11 to Def. Resp., (special primary and general).1 Plaintiffs cannot demonstrate
that Governor Snyder had a racially discriminatory purpose when he delayed the special primary
and general elections for the thirteenth district.
In addition to their racial discrimination theory, Plaintiffs set forth a second theory for
relief under the Equal Protection Clause. Plaintiffs contend that, regardless of race, Governor
Snyder’s decision to hold the special general election eleven months after the House vacancy
occurred violates their equal protection rights by burdening their fundamental right to vote. As
noted above, an equal protection claim will lie where a plaintiff has shown that the defendant has
burdened a fundamental right. Loesel, 692 F.3d at 461. It is well-settled, and the parties do not
dispute, that the right to vote is a fundamental right. See McDonald v. Bd. of Election Comm’rs
of Chicago, 394 U.S. 802, 807 (1969). The dispute turns on whether delaying the special general
election eleven months actually constitutes a burden on Plaintiffs’ voting rights.

1

Plaintiffs note one exception to this rule. In 2013, Governor Snyder called a standalone
primary and a standalone general election to fill the seat of state Senator John Gleason. See
Gleason Election Call at 2 (Dkt. 16). At the hearing, counsel for Governor Snyder stated that the
governor ceased this practice after receiving significant criticism from constituents in Senator
Gleason’s district. The Court believes that this one exception does not contradict Governor
Snyder’s clear preference to coordinate special elections with regularly scheduled elections.
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As discussed above, the Sixth Circuit in Taft held that governors are under a
constitutional obligation to call an election to fill a vacancy in the House. Taft, 385 F.3d at 650.
However, the court also recognized that the Constitution “gives states the discretion to determine
the ‘Times, Places, and Manner’ of holding such elections, and that the states have valid interests
in ensuring fair and reliable elections.” Id. at 650-651 (quoting U.S. Const., art. I, § 4, cl. 1).
The court held that “legislative balancing between a state’s interests in ensuring fair and reliable
elections, and its citizens’ rights to vote and to equal representation, is entitled to considerable
deference.” Id. at 651.
Other courts that have addressed delays in filling House vacancies have also recognized
the discretion afforded to states when scheduling special elections, and the deference that courts
should afford states in balancing their interest in ensuring fair elections against its citizens’ right
to vote and to representation. In Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970), voters
brought suit after the governor of Illinois refused to call a special election after the death of a
House member on August 13, 1969. In a May 1970 opinion overturning the district court’s
dismissal, the Seventh Circuit held that the governor had a mandatory, constitutional duty to call
a special election to fill the vacant House seat. Importantly, the court also stated that a governor
“has discretion in calling a special election,” noting that “he may prefer one day of the week over
another, or cause the special election to coincide with or to avoid being held on the same day as
another election.” Id. at 1337-1338 (emphasis added). The court held that the district court’s
order “should be framed in a manner which will preserve defendant’s latitude and discretion in
these matters.” Id. at 1338. Also of note, the Seventh Circuit stated that the special election
could coincide with the regularly scheduled November 3, 1970 elections, and came to the
conclusion that a truncated term from November 1970 through January 3, 1971 was not

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insignificant. Id. at 1337 (“We are not prepared to say as a matter of law that representation
from the time the results of the November 3 election will be determined to January 3, 1971 is de
minimis.”).
In Mason v. Casey, No. CIV. A. 91-5728, 1991 WL 185243 (E.D. Pa. Sept. 18, 1991),
the court rejected a claim by Pennsylvania voters that a statute requiring at least sixty days
between a vacancy and special election deprived them of their right to vote. The vacancy
occurred on September 11, 1991, and because of the statute, the special election could not be
held to coincide with the November 5, 1991 general election. In denying relief, the court stated
that “Plaintiffs [sic] claim of infringement of a fundamental right is based upon when the
election should take place, and that determination is clearly within the wide discretion of the
Pennsylvania Legislature and Governor Casey.” Id. at *2. The court held that “[i]t is clear that
many factors must be considered in deciding the issue of when an election for a vacancy should
take place, and these factors are peculiarly within the discretion of the state. Pursuant to 25 P.S.
§ 2777, November 5, 1991 is not a viable date for the election, and this decision is constitutional
as long as the resulting delay serves a legitimate purpose.” Id. The court found that the delay
served a legitimate purpose because it allowed time to educate voters on the issues and
candidates that would be on the ballot. Id.
The court in Fox v. Paterson, 715 F. Supp. 2d 431, 437 (W.D.N.Y. 2010) also recognized
that “the Framers of the Constitution and Congress have clearly indicated their intent to leave
decisions concerning the timing of such elections to the individual states.” In Fox, voters in New
York challenged the governor’s decision to wait until November 2010 to hold a special election
after a vacancy occurred in March of that year. The court found that the governor acted within
his discretion when delaying the election until November, noting that he articulated several

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reasons for the delay, including the use of new electronic voting machines, the financial burden
that would be placed upon municipalities by holding a special election so close to the general
election, and the possible disenfranchisement of military voters stationed overseas. Id. at 440.
The Court holds that, like the governors in Mason and Fox, Governor Snyder has acted
within the discretion conferred upon him by the Constitution. He has set forth several legitimate
reasons for his decision to hold the special primary and general elections in conjunction with
previously-scheduled elections. These reasons include: (i) allowing time for candidates to raise
money, collect signatures, and educate voters; (ii) allowing the state’s normal primary and
general election process to occur; and (iii) the cost in conducting special elections. Def. Resp. at
17; see also 12/8/2017 Press Release, Ex. 2 to Def. Resp. (Dkt. 11-3) (“Having ample time for
candidates to make a decision about running for office and file their paperwork gives people
more options as to who will next represent them in Congress. In order to allow several months
for that to take place and to reduce the financial burden on local taxpayers, the primary and
general elections will be held when regularly scheduled elections are already occurring.”).
In support of his assertion that delaying the special election will lessen the burden on
local communities, Governor Snyder offers the affidavits of Malerman, the senior election law
specialist with Michigan’s Secretary of State. Malerman explains in detail the preparations that
are necessary to hold an election in the thirteenth congressional district. These preparations
include receiving and canvassing nominating and qualifying petitioners, resolving challenges
against those petitions, preparing and distributing ballots, appointing and training election
inspectors, processing registration and ballot applications, testing voting equipment, posting
public notice of deadlines, and preparing and distributing election day equipment and materials.
Malerman Aff., Ex. 3 to Def. Resp., ¶ 6(a)-(n) (Dkt. 11-4). According to Malerman, “the total

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estimated cost to conduct a special primary or special election on a day other than a regular
election date in the 13th Congressional District is $840,000.” Id. ¶ 10. The majority of this
additional amount, over $500,000, would be incurred by the City of Detroit if either the special
primary or special general election were required to be held on a date other than a previouslyscheduled election. Id.
Governor Snyder acted within the discretion granted to him when he considered the
amount of time it takes state election officials to prepare for an election, the financial burden
standalone elections place on municipalities, and the time it takes for candidates to collect
signatures and educate voters, and determined that holding the special primary and special
general election in conjunction with the regularly scheduled elections was the best course of
action. Courts have made clear that while states are under an obligation to conduct a special
election when a congressional vacancy occurs, they are given broad discretion in determining
when the special election should be held. As long as a state balances its “interests in ensuring
fair and reliable elections, and its citizens rights to vote and to equal representation,” the decision
regarding when to schedule a special election “is entitled to considerable deference.” Taft, 385
F.3d at 650; see also Mason, 1991 WL 185243 at *2 (a delay in scheduling a special election is
permissible as long as the delay “serves a legitimate purpose.”). Because the record reflects that
the delay serves legitimate purposes, it cannot be said that Snyder has burdened Plaintiffs’
fundamental right to vote.2

2

This conclusion is bolstered in light of Plaintiffs’ newly sought relief. Instead of requesting
that Governor Snyder hold a special election “as soon as possible,” Plaintiffs now indicate that
they would be amenable to an August special election, preceded by a standalone special primary.
This would effectively add three months to the term of the successor, compared to the term that
would be served under the timetable established by Governor Snyder. While the Court is
cognizant of the importance of the right to representation, it does not find Governor Snyder’s
decision to hold the special election just three months later than requested to be constitutionally
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The Court recognizes that a period of eleven months without representation is significant.
In certain instances, a governor’s decision to delay a special election for “an extraordinary
amount of time” may constitute “a de facto refusal to call a special election at all.” Fox, 715 F.
Supp. 2d at 442. For instance, if Congressman Conyers had resigned immediately after his term
began in January 2017, the Court would be hard pressed to defer to the Governor’s decision to
hold a special election in November 2018; that would likely be a “de facto refusal to call a
special election at all.” But that is not the case here. While Governor Snyder could have
theoretically scheduled one or two standalone elections immediately after Congressman Conyers
resigned in December, he was entitled to consider, and reject, the burdens that such a decision
would impose on the localities and candidates. His decision to hold the special elections in
conjunction with previously-scheduled elections is constitutionally permissible.

Therefore,

Plaintiffs have not demonstrated a likelihood of success on the merits.
B. Irreparable Harm, Potential Injuries to Others, and the Public Interest
While no single factor controls, “a finding that there is simply no likelihood of success on
the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th
Cir. 2000). In light of Plaintiffs’ failure to demonstrate a likelihood of success on the merits, the
Court will briefly address the remaining factors. With regard to irreparable harm, “a plaintiff can
demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a
violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cty.

infirm. This is especially so where holding a special general election in conjunction with a
regularly-scheduled primary is likely to cause confusion to voters. See Malerman Aff. II ¶ 24
(noting that Michigan law requires primary voters to only vote for one party, which may cause
confusion for general election voters who are not so restricted). The timing of Plaintiffs’
proposal, raised for the first time at the March 15, 2018 hearing, also makes earlier elections
impractical, if not entirely impossible. See id. ¶¶ 9-15.

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Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Because Plaintiffs have not made out a violation of
their constitutional rights, they cannot demonstrate that they would suffer irreparable harm in the
absence of an injunction. The remaining factors, “harm to the opposing party and weighing the
public interest . . . merge when the Government is the opposing party.” Nken v. Holder, 556
U.S. 418, 435 (2009). The Court holds that these factors weigh in favor of Governor Snyder. As
discussed above, ordering a standalone special election, in addition to burdening municipalities
and potential candidates, could cause the state to run afoul of several state and federal statutory
requirements. In sum, the remaining preliminary injunction factors weigh in Governor Snyder’s
favor.
IV. CONCLUSION
For the foregoing reasons, the Court denies Plaintiffs’ motion for preliminary injunction
(Dkt. 8).
SO ORDERED.
Dated: March 28, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 28, 2018.
s/Karri Sandusky
Case Manager

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