Esshaki v. Whitmer et al

Filing 23

ORDER GRANTING #2 Motion for Preliminary Injunction. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:20-cv-10831-TGB-EAS ECF No. 23 filed 04/20/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:20-CV-10831-TGB

ERIC ESSHAKI, as candidate for
United States Congress and in his
individual capacity;
MATT SAVICH, as candidate for
the Forty-Seventh District Court,
Oakland County, Michigan and in
his individual capacity;
DEANA BEARD, as candidate for
the Third Circuit Court Judge,
Regular Term, Non-Incumbent
Position in Wayne County and in
her individual capacity.

ORDER GRANTING MOTION
FOR PRELIMINARY
INJUNCTION

Plaintiffs,
vs.
GRETCHEN WHITMER,
Governor of Michigan;
JOCELYN BENSON, Secretary of
State of Michigan; and
JONATHAN BRATER, Director of
the Michigan Bureau of Elections,
in their official capacities,
Defendants.
In normal times, a candidate for United States Congress in
Michigan’s Eleventh Congressional District must collect one thousand
signatures from registered voters in order to have his or her name appear
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on the primary ballot. Candidates typically gather these signatures doorto-door, or in high-traffic public places like outside malls, grocery stores,
crowded school or community events, public rallies, or places of worship.
Under Michigan’s statute, the signatures are due on the fifteenth
Tuesday before the August 4th primary. This year, signatures are due
on April 21, 2020.
Unfortunately, these are not normal times. On March 10, 2020,
Michigan Governor Gretchen Whitmer declared a state of emergency
based on the serious threat to public safety posed by the COVID-19 or
“coronavirus” pandemic.

In less than four months, since the first

reported case of the disease on American soil in January,1 this highly
contagious novel virus has taken the lives of more than thirty-four
thousand Americans, of whom more than two thousand were residents of
the State of Michigan.2 In addition to causing thousands of deaths, the
pandemic has upended the daily routines of hundreds of millions as they

Michelle L. Holshue, et al., First Case of 2019 Novel Coronavirus in the United States, 382 New Eng.
J. Med. 929 (2020).
1

Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Apr. 19, 2020),
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last accessed Apr. 19, 2020).

2

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sheltered at home, causing one in four small businesses to close,3 and 22
million Americans to lose their jobs.4 Since March 23, 2020, pursuant to
Executive Order 2020-21, the State of Michigan has been on lockdown:
all nonessential in-person work has been prohibited, as have all public
and private gatherings of persons not part of the same household. Malls
are closed, schools and churches have moved to social media solutions
such as Zoom, and any candidate trying to canvass door-to-door to
attempt to gather signatures today would be committing a misdemeanor
offense.
Yet, the State insists on enforcing the signature-gathering
requirements as if its Stay-at-Home Order responding to the ongoing
pandemic had no impact on the rights of candidates and the people who
may wish to vote for them. The plaintiff5 in this matter, Eric Esshaki, is
running

for

United

States

Congress

in

Michigan’s

Eleventh

Special Report on Coronavirus and Small Business, U.S. Chamber of Comm. & MetLife, Apr. 3,
2020.
3

Heather Long, U.S. now has 22 million unemployed, wiping out a decade of job gains, Wash. Post
(Apr. 16, 2020),
https://www.washingtonpost.com/business/2020/04/16/unemployment-claimscoronavirus/?outputType=amp.

4

Since oral argument on April 15, 2020, the Court has granted emergency motions to intervene from
two additional plaintiffs, Mr. Savich and Ms. Beard. Both allege that their legal positions are
substantively identical to Mr. Esshaki, but because of the emergency nature of these proceedings,
Defendants have not yet had opportunity to respond to Mr. Savich’s or Ms. Beard’s allegations
specifically. Accordingly, this Order focuses primarily on Mr. Esshaki’s arguments, and refers to him
as “Plaintiff”.
5

3

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Congressional District. He states that he has gathered more than seven
hundred of the one thousand signatures he needs to get on the primary
ballot. He contends that because of the Stay-at-Home Order, he was
effectively prohibited from collecting the remaining three hundred
signatures he needed in time to meet the April 21 deadline, and that
consequently he will be barred from having his name appear on the
primary ballot. Under these unique historical circumstances, as will be
explained in detail below, the Court finds that the State’s actions in the
form of enforcing both the Stay-at-Home Order and the statutory ballotaccess requirements, operate in tandem to impose a severe burden on
Plaintiff’s ability to seek elected office, in violation of his First and
Fourteenth Amendment rights to freedom of speech, freedom of
association, equal protection, and due process of the law. Consequently,
the Motion for Preliminary Injunction will be granted.
I.

BACKGROUND

Plaintiff Eric Esshaki is a registered nurse and practicing attorney
running as a Republican candidate for United States Congress in
Michigan’s Eleventh Congressional District. Compl. ¶ 2, ECF No. 1,
PageID.2. He filed his statement of candidacy with the Federal Election
4

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Commission on October 31, 2019. Id. ¶ 18, PageID.5. He is required by
statute to collect one thousand valid signatures from registered voters by
April 21, 2020 to qualify to have his name placed on the August 4, 2020
primary ballot. Mich. Comp. Laws §§ 168.133, 168.544f (collectively “the
signature requirement”). By March 23, 2020, Esshaki’s campaign had
already collected approximately seven hundred signatures. Compl. ¶ 22,
ECF No. 1, PageID.6.
On March 10, 2020, Michigan’s first two COVID-19 cases were
announced and Governor Gretchen Whitmer declared a state of
emergency. See Mich. Exec. Order 2020-4 (Mar. 10, 2020) (“State of
Emergency Declaration”). The State of Emergency Declaration cautioned
citizens that COVID-19 “is a respiratory disease that can result in serious
illness or death . . . and can easily spread from person to person.” Id. By
March 23, 2020, the number of diagnosed coronavirus cases in Michigan
had grown to more than nine hundred and thirteen6 and the Governor
signed Executive Order 2020-21 (the “Stay-at-Home Order”). The Stayat-Home Order suspended in-person non-essential commercial activities
and directed residents to “remain at home or in their place of residence
Daily
Counts,
Michigan.gov,
https://www.michigan.gov/coronavirus/0,9753,7-40698163_98173_99207---,00.html (last accessed Apr. 17, 2020).
6

5

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to the maximum extent feasible.” Mich. Exec. Order No. 2020-21 (Mar.
23, 2020). It also prohibited all “public and private gatherings of any
number of people” not part of a single household and ordered that persons
performing essential activities outside of their homes remain six feet
apart. Id. The Stay-at-Home Order does not contain any exception for
campaign workers. On April 9, 2020, the Governor signed a second
executive order extending the Stay-at-Home Order through the end of
April. See Mich. Exec. Order No. 2020-42 (Apr. 9, 2020). A violation of
the Stay-at-Home Order is a misdemeanor criminal offense. Id.; Mich.
Comp. Laws § 10.33.
Plaintiff and the numerous candidates who have expressed an
interest in the outcome of this case7 maintain that the Stay-at-Home
Order has for all practical purposes denied them the opportunity to

The Court has received a number of amicus curiae briefs and motions to intervene from other
candidates who, like Plaintiff, say they have been unable to gather signatures because of the Stay-atHome Order. They include: Mr. Daniel Finley, a judicial candidate for Michigan’s Twenty-Second
Circuit (ECF No. 13), Mr. Matt Savich, a judicial candidate for Michigan’s Forty-Seventh District
Court (ECF No. 11), Ms. Deana Beard, a judicial candidate for Michigan’s Third Circuit Court (ECF
No. 17), and Mr. Kyle Kopitke, an independent presidential candidate (ECF No. 18). In addition, the
American Civil Liberties Union filed an amicus curiae brief in support of Plaintiff (ECF No. 15), and
Ms. Whittney Williams, a competitor of Mr. Esshaki also seeking to run as the Republican candidate
for United States Congress in Michigan’s Eleventh Congressional District, filed an amicus curiae brief
opposing relief for Plaintiff (ECF No. 21). The Court also received correspondence from Mr. Bob Carr,
a Republican candidate for U.S. Senate, who provided a list of candidates that he appeared to be citing
as similarly situated, but provided no evidentiary support for his claim. By separate order, the Court
will grant these pending motions to intervene and file amicus briefs, with the exception of the motion
of proposed Plaintiff Kopitke, because the relief he seeks differs significantly from that of the other
candidates.
7

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collect the signatures that they needed during the timeframe between
March 23 and April 21. Mot. for Prelim. Inj., ECF No. 2, PageID.50.
Plaintiff contends that the combination of the State’s strict enforcement
of statutory signature gathering requirements with the Governor’s Stayat-Home Order has placed a severe burden on his ability to run for elected
office—in violation of the freedom of speech, freedom of association, equal
protection, and due process rights guaranteed to him by the First and
Fourteenth Amendments. Compl. ¶ 46, ECF No. 1, PageID.11. Plaintiff
argues that the burden placed on him by the State’s actions is
unconstitutional because the State has neither a compelling interest in
enforcing the signature requirement, nor has it narrowly tailored its
ballot access requirements to effectuate any compelling interest it may
have. ECF No. 2, PageID.55.
Defendants contend that enforcement of the signature requirement
in light of the Governor’s Stay-at-Home Order has only moderately
burdened Plaintiff’s ability to run for elective office. Defs. Resp., ECF
No. 6, PageID.112. Defendants argue that Plaintiff entered the race
relatively late, that he was not diligently collecting signatures before the
Stay-at-Home Order was issued, that he should have “doubled down” on
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his signature-collection efforts during the period between the March 10th
State of Emergency Declaration and the March 23rd Stay-at-Home
Order, that he could have collected signatures by mail, and that even if
he fails to get on the ballot, he can always run as a write-in candidate.
Id. at PageID.110-12.
Defendants assert that any burden placed on Plaintiff’s ability to
run for elective office by the enforcement of the State’s signature
requirements must be weighed against the State’s substantial interest in
ensuring that candidates have a significant modicum of support before
their names are printed on the ballot. Id. at PageID.113. Defendants
argue that a threshold showing of support through signature gathering
helps protect the integrity of the electoral process by limiting the number
of candidates on the ballot and avoiding voter confusion. Id. Defendants
further assert that the State has an interest in maintaining April 21,
2020 as the filing deadline because that date “ensur[es] that the
Secretary of State and her staff have sufficient time to canvass petitions,
provide a challenge period, and meet the ballot certification deadline,
which triggers final preparations for ballot printing by the counties.” Id.
at PageID.115.
8

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The Court heard oral argument on this motion on April 15, 2020,
utilizing the social media platform Zoom. At the hearing, both parties
referenced proposed remedies that each had submitted to the Court in
camera.

Plaintiff seeks an order reducing the required number of

signatures by forty percent, so that candidates would only need to collect
sixty percent of the required number. Defendants proposed postponing
the filing date to May 8, 2020, and offering candidates an approved
method to collect signatures by e-mail, and submit them using the
Internet, but they opposed any reduction in the required number of
signatures. The Court will consider these proposed remedies together
with the relevant facts and applicable law in reaching its decision.
II.

LEGAL STANDARD
a. Preliminary Injunction

The Court must consider four factors when ruling on a motion for a
preliminary injunction: (1) the likelihood that the party seeking the
preliminary injunction will succeed on the merits of the claim; (2)
whether the party seeking the injunction will suffer irreparable harm
absent the injunction; (3) the probability that granting the injunction will
cause substantial harm to others; and (4) whether the public interest is
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advanced by the issuance of the injunction. Bays v. City of Fairborn, 668
F.3d 814, 818-19 (6th Cir. 2012). No one factor is dispositive; rather the
court must balance all four factors. In re De Lorean Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985). A preliminary injunction is an extraordinary
remedy that will only be granted if Plaintiff shows that circumstances
clearly demand it. Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305
F.3d 566, 573 (6th Cir. 2002).
III. DISCUSSION
a. Likelihood of Success on the Merits
Under Michigan election law, candidates for certain elective offices
must

comply

with

statutory

signature

gathering

requirements

enumerated in Section 168.544f. Mich. Comp. Laws § 168.544f. The
number of signatures required depends on the population of the district
and whether or not that candidate is running as a member of a party.
Mich. Comp. Laws § 168.544f.

Congressional candidates are also

governed by Section 168.133, which sets the April 21, 2020 filing
deadline. Mich. Comp. Laws § 168.133. Substantially similar statutes
set April 21, 2020 as the petition filing date for other offices. See, e.g.,
Mich. Comp. Laws § 168.93 (U.S. Senator); Mich. Comp. Laws § 168.93
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(judge of Circuit Court); Mich. Comp. Laws § 168.467b (judge of District
Court).
While there is no fundamental right to run for elective office, the
Supreme Court has recognized that ballot access laws such as Sections
168.133 and 168.544f “place burdens on two different, although
overlapping, kinds of rights – the right of individuals to associate for the
advancement of political beliefs, and the right of qualified voters,
regardless of their political persuasion, to cast their votes effectively.”
Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Ballot access restrictions
affect candidates and individual voters alike because absent recourse to
state-wide proposals or referenda, “voters can assert their preferences
only through candidates or parties or both.” Lubin v. Panish, 415 U.S.
709, 716 (1974). “By limiting the choices available to voters, the State
impairs the voters’ ability to express their political preferences.” Ill.
State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).
As the Supreme Court explained in the seminal ballot access case of
Anderson v. Celebrezze, 460 U.S. 780, 786 (1983), “the rights of voters and
the rights of candidates do not lend themselves to neat separation; laws

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that affect candidates always have at least some theoretical correlative
effect on voters.” (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
When considering the constitutionality of ballot access laws, courts
apply the framework established in Anderson, 460 U.S. at 780 as later
refined in Burdick v. Takushi, 504 U.S. 428 (1992). Under the AndersonBurdick framework, courts first look at the “character and magnitude of
the asserted injury” to the plaintiff’s constitutional rights. Anderson, 460
U.S. at 789. “When a state promulgates a regulation which imposes a
‘severe’ burden on individuals’ rights, that regulation will only be upheld
if it is ‘narrowly drawn to advance a state interest of compelling
importance’” Lawrence v. Blackwell, 430 F.3d 368, 373 (6th Cir. 2005)
(quoting Burdick, 504 U.S. at 434). The analysis requiring that a state
law be narrowly tailored to accomplish a compelling state interest is
known as the “strict scrutiny” test.

If regulations enacted do not

seriously burden a plaintiff’s rights, a state’s important regulatory
interests

will

typically

be

enough

to

justify

“reasonable,

nondiscriminatory restrictions.” Anderson, 460 U.S. at 788. Regulations
falling somewhere in between—“i.e., regulations that impose a morethan-minimal but less-than-severe burden—require a ‘flexible’ analysis,
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‘weighing the burden on the plaintiffs against the [s]tate’s asserted
interest and chosen means of pursuing it.’” Ohio Democratic Party v.
Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Green Party of Tenn.
v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)). This level of review is
called “intermediate scrutiny.”
i. Severity of the burden on Plaintiff
In this case, Plaintiff is challenging neither the constitutionality of
the State’s ballot access laws nor the Governor’s Stay-at-Home Order in
isolation.

Rather, Plaintiff seeks relief because the two regulations,

taken together, have prevented him from collecting enough signatures
before the April 21, 2020 deadline to get his name on the primary ballot.
See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 586 (6th Cir.
2006) (“Our inquiry is not whether each law individually creates an
impermissible burden but rather whether the combined effect of the
applicable election regulations creates an unconstitutional burden on
First Amendment rights.”); Graveline v. Johnson, 336 F. Supp. 3d 801,
810 (E.D. Mich. 2018) (considering “the ‘combined effect’ of the challenged
regulations, rather than each statute’s requirement by itself”). Plaintiff
argues that the burden put on him by the two regulations is severe,
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necessitating a strict scrutiny analysis.

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ECF No. 1, PageID.11.

Defendants contend that the burden is moderate, necessitating a
“flexible” weighing of the burdens analysis, or “intermediate scrutiny.”
ECF No. 6, PageID.110.
Defendants proffer four separate reasons why the burden on
Plaintiff is not severe. Upon close examination, none is convincing. First,
Defendants argue that Plaintiff has not been diligent in collecting
signatures because, at the time the March 23rd Stay-at-Home Order was
issued, he had only collected seven hundred of the one thousand he is
required to obtain.

ECF No. 6, PageID.110.

Defendants offer little

evidence to support this assessment. The State refers to information
available on its website showing a list of those candidates who have
successfully met the current filing requirements.8

But the relevant

question pertains to those candidates who have declared their intentions
to qualify for the ballot, but have not yet met the filing requirements at
the time the Stay-at-Home Order went into effect. The State could have
conducted a survey to determine where those candidates were in the
signature collection process as of the date of the shut-down, but no such
2020
Michigan
Candidate
Listing,
Mich.
Sec’y
of
State,
https://miboecfr.nictusa.com/election/candlist/2020PRI_CANDLIST.html (last accessed Apr. 19, 2020).
8

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information has been proffered. It is not enough to merely assert that a
candidate’s successful collection of seventy percent of the requisite
signatures with twenty-nine days left to go is somehow evidence of
dilatory behavior.

Moreover, during oral argument on this matter,

Plaintiff indicated that he had campaign events planned for late March
and April that had to be canceled after the Stay-at-Home Order was
issued. Other candidates as well have submitted testimony that they
likewise had planned to ramp up signature collection efforts in March
and April, when warmer spring weather would accommodate outdoor
activities and be more conducive to large social gatherings and door-todoor canvassing. See Bannister Decl. ¶ 10, ECF No. 15-2, PageID.27374; Amicus Br. of Daniel P. Finley, ECF No. 13, PageID.212; Deana Beard
Mtn. for Joinder, ECF No. 17, PageID.296; see also Jones v. McGuffage,
921 F. Supp. 2d 888, 897 (N.D. Ill. 2013) (noting that burden on
candidates increased when signature gathering period for special election
was truncated by one-third and limited to “December and January—
months during which weather in the Chicago area is particularly
inclement and in which there are a dearth of large scale, outdoor, public
events during which signature drives are most successful”).
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Second, Defendants contend that the Governor’s March 10, 2020
State of Emergency Declaration “should have acted as a wake-up call to
Plaintiff and his staff to double-down on signature collection efforts”
before the March 23, 2020 Stay-at-Home Order. ECF No. 6, PageID.111.
This argument both defies good sense and flies in the face of all other
guidance that the State was offering to citizens at the time.

The

Governor’s State of Emergency Declaration cautioned citizens that
COVID-19 “is a respiratory disease that can result in serious illness or
death . . . and can easily spread from person to person.”

Mich. Exec.

Order 2020-4 (Mar. 10, 2020). The next day, the State issued a press
release urging citizens to “[r]educe in-person gatherings and activities,”
“consider tele-work[ing]” and limit interactions with vulnerable
populations.9

Instead of “doubling down” on door-to-door signature

collection efforts between March 10th and March 23rd—increasing the
risk that Plaintiff and his supporters could possibly be exposed to the
COVID-19 virus by engaging in repeated close-contact with potential

State Recommends Community Mitigation Strategies to help slow the transmission of COVID-19 in
Michigan, Michigan.gov (Mar. 11, 2020), https://www.michigan.gov/coronavirus/0,9753,7-406-98158521463--,00.html.
9

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petition signers or unknowingly transmit it to others—prudence at that
time counseled in favor of doing just the opposite.
Third, Defendants argue that Plaintiff could have utilized a mailbased campaign to collect the remaining three hundred signatures he
needed during the month-long shutdown.

ECF No. 6, PageID.111.

Plaintiff counters that a mail campaign is both prohibitively expensive
and of unproven efficacy. ECF No. 10, PageID.159. He also says that he
tried it. Plaintiff states that on April 2, 2020, he sent one thousand
petitions by mail at a cost of $1.75 each. ECF No. 10, PageID.159. And
by April 14, 2020, the mail campaign had garnered a total of fifteen
additional signatures—which, given the cost of the mailing, meant the
equivalent of paying approximately $115 per signature. Id. At that rate,
Plaintiff estimates that it would have cost him an additional $34,500 to
gather the remaining three hundred signatures he needed.

See id.

Indeed, if Plaintiff wanted to collect four hundred signatures in order to
ensure a safety margin in the event any signatures were later found to
be invalid, such a mailing would cost $45,000. Id; see also Deana Beard
Mtn. for Joinder, ECF No. 17, PageID.296 (judicial candidate who
estimates that a mail-only campaign for remaining signatures would cost
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her $216,450). A $34,500 expense is a significant financial burden for
any congressional campaign. Further, the unforeseen nature of such an
expense here surely magnifies its burden: no candidate, at the time they
initially declared for office, could have anticipated that at the end of
March, just when in-person signature collecting might be expected to be
ramping up, there would arise the sudden need to switch to a mail-only
signature campaign. While Plaintiff is not entitled to free access to the
ballot, the financial burden imposed by an unforeseen but suddenly
required mail-only signature campaign is far more than an incidental
campaign expense or reasonable regulatory requirement.

For any

candidate other than those with unusually robust financial means, such
a last-minute requirement could be prohibitive. Compare Libertarian
Party of Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016) (“the incidental
costs of gathering signatures on petitions do not come close to exclusion
from the ballot, and thus do not impose a severe burden on ballot access”)
with Lubin, 415 U.S. at 718 (holding that a $701.60 filing fee is an
unconstitutional burden on indigent candidate with no alternative
mechanism to get his name on the ballot).

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Furthermore, though the Court finds that a mail-only campaign for
the remaining signatures would impose more than an incidental cost on
Plaintiff and candidates like him, in the context of the COVID-19
pandemic, the efficacy of a mail-based campaign is unproven and
questionable at best.

Conducting an effective mail campaign in the

current environment presents a significant hurdle. Such a mail-only
signature gathering campaign assumes both a fully operational postal
service and a public willing to walk to the mailbox, open physical
envelopes, sign a petition, and deposit the envelope back into a mailbox
or make a trip to the Post Office. Today, sadly, ample reasons exist to
question the plausibility of each of those assumptions. For one, the
United States Postal Service has itself been affected by the COVID-19
virus: As of April 7, 2020, more than 386 postal workers have tested
positive for the virus nationwide and mail delays have been confirmed in
Southeast Michigan.10 Media reports extensively discuss the risks of
contracting COVID-19 from mail, suggesting, at least anecdotally, that

Justin P. Hicks, Michigan mail delivery slows as coronavirus hits postal service workers, Mlive (Apr.
7,
2020),
https://www.mlive.com/public-interest/2020/04/michigan-mail-delivery-slows-ascoronavirus-hits-postal-service-workers.html.
10

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the issue may be of widespread public concern or even fear.11 Getting
voters to return signatures by mail in normal times is difficult.12 In these
unprecedented circumstances, the efficacy of a mail-only signature
gathering campaign is simply an unknown.

Forcing candidates—

through little fault of their own—to rely on the mails as their only means
of obtaining signatures presents a formidable obstacle of unknown
dimension.
Fourth, Defendants contend that even if Plaintiff fails to gather
sufficient signatures to have his name placed on the August ballot, he
remains free to mount a write-in campaign, and like any write-in
candidate, he would have that method of access to the ballot, which
should be considered adequate.

ECF No. 6, PageID.112.

But this

argument has already been rejected both by the Supreme Court and by a
court in this district. Lubin, 415 U.S. 719 n.5 (“The realities of the
electoral process . . . strongly suggest that ‘access’ via write-in votes falls

See, e.g., Nicola Twilley, You’ve Got Mail. Will You Get the Coronavirus?, N.Y. Times (Mar. 24, 2020),
https://www.nytimes.com/2020/03/24/health/coronavirus-mail-packages.html.
11

See Daniel Hays Lowenstein & Robert M. Stern, The First Amendment and Paid Initiative Petition
Circulators: A Dissenting View and A Proposal, 17 Hastings Const. L.Q. 175, 206 (1989) (“Recipients
are not likely to sign and return the petitions . . . . Whereas the course of least resistance in a shopping
mall may be to sign when asked, signing and returning a petition by mail takes significantly more
effort than throwing away the solicitation letter.”).
12

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far short of access in terms of having the name of the candidate on the
ballot.”); Anderson, 460 U.S. at 799 n.26 (“We have previously noted that
[a write-in] opportunity is not an adequate substitute for having the
candidate’s name appear on the printed ballot.”); Graveline, 336 F. Supp.
3d at 811 (Roberts, J.) (same).
The reality on the ground for Plaintiff and other candidates is that
state action has pulled the rug out from under their ability to collect
signatures. Since March 23, 2020, traditional door-to-door signature
collecting has become a misdemeanor offense; malls, churches and
schools and other public venues where signatures might be gathered
have been shuttered, and even the ability to rely on the mail to gather
signatures is uncertain—if not prohibitively expensive. Absent relief,
Plaintiff’s lack of a viable, alternative means to procure the signatures
he needs means that he faces virtual exclusion from the ballot. After
considering Defendants’ arguments, this Court has little trouble
concluding that the unprecedented—though understandably necessary—
restrictions imposed on daily life by the Stay-at-Home Order, when
combined with the ballot access requirements of Sections 168.133 and
168.544f, have created a severe burden on Plaintiff’s exercise of his free
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speech and free association rights under the First Amendment, as well
as his due process and equal protection rights under the Fourteenth
Amendment13—as expressed in his effort to place his name on the ballot
for elective office. See Libertarian Party of Ky., 835 F.3d at 574 (“The
hallmark of a severe burden is exclusion or virtual exclusion from the
ballot.”). Accordingly, a strict scrutiny analysis is appropriate here. See,
e.g., Faulkner v. Va. Dep’t. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25,
2020) (applying strict scrutiny to candidate’s ballot access claim in light
of state’s COVID-19 restrictions).
ii. Defendants’ interest in enforcing signature
requirements in light of the Stay-at-Home Order
Because

the

State’s

signature

requirements,

operating

in

conjunction with the Stay-at-Home Order, have imposed a severe burden
on the First and Fourteenth Amendment rights of Plaintiff and other
candidates in his position, such measures can be constitutionally justified
only if they are “narrowly drawn to advance a state interest of compelling
importance.” Burdick, 504 U.S. at 434.

Although Plaintiffs nominally invoke equal protection, due process, and the First Amendment, the
specific interests they raise and the nature of their arguments involve First Amendment principles
more closely than the equal protection rights of minor party or independent candidates. Accordingly,
this Court, like the parties, will view the case mainly as implicating First Amendment rights.
13

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Defendants argue that the State has two separate interests in
enforcing Sections 168.133 and 168.544f.

First, the State has a

substantial interest in ensuring that candidates have a significant
modicum of support before their names are printed on the ballot. ECF
No. 6, PageID.113. Second, the State has an interest in maintaining the
filing deadline of April 21, 2020 because that date “ensur[es] that the
Secretary of State and her staff have sufficient time to canvass petitions,
provide a challenge period, and meet the ballot certification deadline,
which triggers final preparations for ballot printing by the counties.” Id.
at PageID.115.
The Supreme Court has recognized that states have “an important
interest in ensuring that candidates demonstrate a ‘significant modicum
of support,’ before gaining access to the ballot, primarily in order to avoid
voter confusion, ballot overcrowding, and frivolous candidacies.”
Libertarian Party of Ky., 835 F.3d at 577 (quoting Jenness v. Fortson, 403
U.S. 431, 442 (1971)).

Along with enforcing specific deadlines, both

regulations are part and parcel of the State’s generalized interest in the
orderly administration of elections. Mays v. LaRose, 951 F.3d 775, 787
(6th Cir. 2020).
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Notably, Defendants do not explicitly contend in their brief that
either of the State’s proffered interests in strict enforcement of the
signature requirements rise to the level of a compelling state interest.
See ECF No. 6, PageID.113-16. Rather, they see them as important
government interests in the context of today’s pandemic that would pass
the flexible intermediate scrutiny analysis. At oral argument, however,
the State asserted that its interests were compelling, and the Supreme
Court has found that ensuring that a candidate has a modicum of support
before inclusion on the ballot can be a compelling state interest in other
contexts. Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986) .
Significantly though, with respect to Section 168.133’s April 21, 2020
deadline, the State conceded at oral argument that the signaturegathering due date could be moved back to May 8, 2020 without
significant impairment of the State’s interests. Clearly any interest in
maintaining April 21, 2020 as the signature due date is not, in fact,
compelling.
But even assuming the State has a compelling interest in the need
to ensure a modicum of support through the enforcement of the signature
requirement, the regulatory means to accomplish that compelling
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interest are not narrowly tailored to the context of the COVID-19
pandemic—as it would need to be to survive a strict scrutiny analysis.
This is because under typical conditions, Plaintiff’s ability to obtain one
thousand signatures from registered voters would be a valid indication
that he has earned the “modicum of support” the Michigan Legislature
deemed sufficient to appear on the ballot. When setting the requirement
at one thousand signatures, the Michigan Legislature intended that
candidates be allowed until April 21, 2020—under normal, non-pandemic
conditions—to gather one thousand signatures using all of the
traditionally effective means to do so. The March 23, 2020 Stay-at-Home
Order, for reasons already discussed, effectively halted signaturegathering by traditional means, reducing the available time prescribed
by the Michigan Legislature to gather one thousand signatures by
twenty-nine days. Thus, a state action narrowly tailored to accomplish
the same compelling state interest would correspondingly reduce the
signature requirement to account for the lost twenty-nine days. Or, to
state it differently, even assuming the State generally has a compelling
interest in ensuring candidates have a modicum of support before
allowing inclusion on the ballot, here the State has not shown it has a
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compelling interest in enforcing the specific numerical requirements set
forth in Section 168.544f in the context of the pandemic conditions and
the upcoming August primary.
The State has thus failed to show that its enforcement of the
signature requirements in conjunction with the Stay-at-Home Order is
both justified by a compelling state interest and narrowly tailored to
accomplish that interest in a manner that has the least restrictive impact
on Plaintiff’s constitutional rights. It therefore fails to pass a strict
scrutiny analysis. Consequently, Plaintiff has established a likelihood of
prevailing on the merits of his First and Fourteenth Amendment claims.
b. Likelihood That Plaintiff Will Suffer Irreparable
Harm Absent Injunctive Relief
The Court next considers whether Plaintiff will suffer irreparable
harm in the absence of injunctive relief. Bays, 668 F.3d at 818-19. “To
demonstrate irreparable harm, the plaintiffs must show that . . . they will
suffer actual and imminent harm rather than harm that is speculative or
unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir.
2006).
In reviewing the record, the Court concludes that Plaintiff will
suffer irreparable harm absent relief. Ballot access cases such as this
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implicate First Amendment rights, and when such fundamental rights
are violated—as when a candidate is unconstitutionally deprived of
access to the ballot—irreparable harm can be presumed. See Libertarian
Party of Ohio, 751 F.3d at 412 (“[I]t is well-settled that loss of First
Amendment freedoms, even for minimal periods of time, unquestionably
constitutes irreparable injury.”) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976) (plurality)).
c. Probability of Harm to Others and Consideration of
the Interests of the Public
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). Defendants contend
that the State and its citizens will be harmed in two ways if the Court
issues an injunction. First, the State and the people will be deprived of
the full and proper enforcement of laws enacted by the Michigan
Legislature. Second, an injunction lowering the signature requirement
would allegedly result in the disparate treatment of similarly situated
candidates. ECF No. 6, PageID.118-19. On the first point, the State is
correct that the Supreme Court has consistently recognized that states
have a strong interest in seeing their laws effectuated. See New Motor
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Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers) (“[A]ny time a State is enjoined by a court
from effectuating statutes enacted by representatives of its people, it
suffers a form of irreparable injury.”). As to the second point regarding
disparate treatment, it is the case that other candidates, including some
running against Plaintiff for the Republican nomination in Michigan’s
Eleventh Congressional District, have already obtained enough
signatures to appear on the August ballot. See Amicus Br. of Whittney
Williams, ECF No. 21. If the Court were to grant Plaintiff’s request to
lower the minimum number of signatures required to appear on the
August primary ballot, it would be permitting candidates to appear on
the ballot who had gathered fewer signatures than those like Williams
who have successfully met the threshold before April 21st. In considering
the State’s position, the Court agrees that the first point is well taken
and that the State will likely suffer injury from not having its ballot
access requirements enforced as written if an injunction issues. The
question is balancing the significance of this harm against the
deprivation of constitutional rights, as well as other public harms, that
enforcement of those requirements would cause.
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As to the second harm identified by the State, the alleged disparate
treatment of candidates, this point is not well founded. Without any
injunctive relief, the combination of the Stay-at-Home Order and the
signature requirements operates to cause disparate treatment of those
candidates who were fortunate enough to have met their signature
requirement early as compared with those who were planning—and
needing to use—the last twenty-nine days that they had assumed would
be available to gather signatures. One group benefits while the other
loses. Similarly, if injunctive relief were to lower the number of required
signatures, one could argue that the early birds who might have gained
an advantage from the Stay-at-Home Order’s exclusion of their more
procrastinating competitors would be “harmed” while the other
candidates would be benefitted. Both the status quo and the remedy
sought by Plaintiff would arguably cause a form of disparate impact on
candidates. Consequently, the Court will not give weight to this second
form of harm raised by the State.
The Court must weigh the State’s proffered harm of not being able
to enforce its ballot access requirements against the harm to the Plaintiff
and the public harms that would result from the lack of any injunction.
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The Court finds that the balance weighs in favor of an injunction. First,
in the absence of an injunction, Plaintiff and other candidates in his
position were left with no choice but to have violated the Stay-at-Home
Order in order to collect the signatures they need.

Indeed, some

candidates have already admitted to having done so. See Bannister Decl.
¶ 36, ECF No. 15-2, PageID.278. The broader public interest is not
served by preserving the current signature-gathering scheme at the cost
of encouraging more candidates and their supporters to risk their health
and criminal penalties to gather signatures.
Second, while Defendants accurately point out that voters do not
have an “absolute right to vote for a candidate of [their] choice,” it is also
the case that a candidate’s ability to appear on the ballot “affects the First
Amendment rights of voters.” Blackwell, 462 F.3d at 588; see also Ill.
State Bd. of Elections, 440 U.S. at 184 (“By limiting the choices available
to voters, the State impairs the voters’ ability to express their political
preferences.”).

Here, if a candidate should fail to obtain enough

signatures because she had relied on the somewhat standard and
eminently reasonable assumption that she would be able to ramp up
signature collecting in the spring, Michigan voters may lose the ability to
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vote for a candidate who, absent the pandemic, would have easily been
included on the ballot. This would cause injury to the First Amendment
rights of an innumerable number of Michigan voters.
Finally, were the Court to redress Plaintiff’s injury by granting his
request to lower the number of signatures required to qualify for the
August primary ballot, the uniform nature of the relief would have some
benefits both for candidates who had already met the current threshold
as well as those who had collected a lesser number of signatures. For
example, because Ms. Williams has already obtained one thousand
signatures, any signatures she gathered in excess of a lower minimum
would provide her, and any other candidates in her position, with a larger
margin of signatures, should any of the gathered signatures later be
deemed invalid.
d. Remedy
Since the advent of the coronavirus, and the unfurling of its deadly
pall across America, the governments of the several states have searched
for solutions to protect their citizens’ health, while at the same time

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preserving fundamental democratic processes and liberties.14 In New
York, Governor Andrew Cuomo, confronted with the same issue that is
before this Court, reduced the number of petition signatures candidates
would be required to obtain to thirty percent of the statutory
requirement. N.Y. Exec. Order No. 202.2 (Mar. 14, 2020). Vermont
suspended its signature requirement entirely. H. 681, 2019-2020 Gen.
Assemb., Adjourned Sess. (Vt. 2020).

At least three states have

attempted to address the difficulty candidates face obtaining in-person
signatures by allowing for electronically submitted signatures.

FL.

Emergency R. 1SER20-2 (Apr. 2, 2020); N.J. Exec. Order No. 105 (Mar.
19, 2020); Utah Exec. Order No. 2020-8 (Mar. 26, 2020).
In responding to the public health risks that in-person voting
presents, many states have taken actions designed to ensure adequate
conditions for public participation.

At least sixteen states and one

territory—Alaska, Connecticut, Delaware, Georgia, Hawaii, Indiana,
Kentucky, Louisiana, Maryland, New Jersey, New York, Ohio,

For an extensive review of the numerous examples of state initiatives aimed at protecting democratic
processes in the wake of the COVID-19 pandemic, see Changes to election dates, procedures, and
administration in response to the coronavirus (COVID-19) pandemic, 2020, Ballotpedia,
https://ballotpedia.org/Changes_to_election_dates,_procedures,_and_administration_in_response_to_
the_coronavirus_(COVID-19)_pandemic,_2020 (last accessed Apr. 19, 2020).
14

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Pennsylvania, Rhode Island, West Virginia, Wyoming and Puerto Rico—
have either rescheduled their presidential primaries or adopted voting by
mail procedures with extended deadlines.15 In total, more than half of
the states have already postponed at least one election.16 It may be that
others will follow suit.
In Michigan, while extraordinary and well-coordinated efforts have
been adopted to protect the public health, fewer efforts have focused on
the challenges the virus has raised for the fair and effective functioning
of elections.17 Based on the record before the Court, for the reasons
explained above, Plaintiff has established that he is likely to succeed on
the merits of his claim and that he will suffer irreparable harm absent
an injunction. The Court also finds that on balance, the public interest
would be served by the issuance of an injunction, and that the benefits to

Nick Corasaniti & Stephanie Saul, 16 States Have Postponed Their Primaries Because of
Coronavirus. Here’s a List, N.Y. Times (Apr. 17, 2020), https://www.nytimes.com/article/2020campaign-primary-calendar-coronavirus.html.
15

16

See footnote 14, supra.

Some measures have been taken, for example, the Michigan Secretary of State announced that
absentee ballots would be sent to all voters in preparation for the May 5, 2020 elections. Mich. Sec’y
of State, Secretary of State to mail absent voter ballot applications to all May 5 voters (Mar. 23, 2020)
https://www.michigan.gov/sos/0,4670,7-127-93094-522761-,00.html?link_id=34&can_id=3ce03c3d77033bbeb4c4bf7ba04c984c&source=email-morning-digestcomeback-bid-by-former-attorney-general-highlights-utahs-quirky-ballot-accessrules&email_referrer=email_759189&email_subject=morning-digest-comeback-bid-by-formerattorney-general-highlights-utahs-quirky-ballot-access-rules.
17

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the public and Plaintiff outweigh the injuries the State is likely to incur.
Accordingly, Plaintiff is entitled to the extraordinary remedy of
injunctive relief.
Plaintiff seeks relief from the application of the State’s signature
requirements—specifically Sections 168.133 and 168.544f—because of
the severe burdens the State’s Stay-at-Home Order has placed on his
ability to gather signatures. See Mich. Comp. Laws §§ 168.133, 168.544f.
Injunctive relief in the context of a forthcoming election is an equitable—
and unusual—remedy, but it is not unprecedented. In fact, at least one
state court has already entered a preliminary injunction reducing a state
statutory signature requirement because of the burdens put on
candidates by the COVID-19 pandemic.

Faulkner v. Va. Dep’t. of

Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (granting preliminary
injunction and reducing candidate signature gathering requirements
because of state’s COVID-19 restrictions). This Court agrees with the
Faulkner court and finds that it is appropriate to enjoin Defendants from
rigid application of those particular statutes, as well as any others that
are substantively identical in causing the same kind of irreparable harm
to similarly situated individuals. At the same time, the Court also finds
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that the State is legitimately concerned that a lowering of ballot access
standards could result in “laundry list” ballots crowded with names that
“discourage voter participation and confuse and frustrate those who do
participate.” Lubin, 415 U.S., at 715; see also Briscoe, 429 U.S. at 1322–
23. Accordingly, the Court will balance the interests of both parties in
fashioning a remedy.
The Court considers the proposed remedies suggested by the
parties, together with the facts and applicable law, and finds that a threepronged remedy is necessary to address the nature of the harm while
simultaneously respecting the interest of the State. First, the signature
requirements must be lowered to account for the fact that the State’s
action reduced the available time to gather signatures. Second, as the
State has conceded that it could still meet its election planning
obligations if the due date for signatures were extended until May 8, the
Court will order that extension. Finally, to enhance the available means
for gathering signatures, the State will be ordered to implement a method
that would permit signatures to be gathered through the use of electronic
mail. In doing so, the State is directed to design a system that is as “userfriendly” as possible to maximize its efficacy.
35

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procedures should allow for the use of a digital copy of a real signature
whether created by scanner or by a digital photograph, assuming that
the signature is appropriately witnessed, such as through digital means
as described in Executive Order 2020-41.
As stated, because the Court gives weight to the State’s competing
interests, the Court will not completely enjoin the enforcement of the
signature requirements contained in Sections 168.133 and 168.544f. The
Court will instead order the State to lower the minimum number of
signatures required for candidates to be included on the August primary
ballot and continue to accept signatures until May 8, 2020. This form of
relief is also not without precedent. See Faulkner v. Va. Dep’t. of
Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (reducing signature
requirement sixty-five percent in light of COVID-19 restrictions); see also
Graveline, 336 F. Supp. 3d at 817 (granting preliminary injunction and
reducing signature requirement for attorney general candidate from
30,000 signatures to 5,000) aff’d Graveline v. Johnson, 747 F. App’x 408,
416 (6th Cir. 2018); Jones v. McGuffage, 921 F. Supp. 2d 888, 899 (N.D.
Ill. 2013) (granting preliminary injunction and reducing candidate
signature gathering requirements because upholding statutory signature
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gathering requirements in context of truncated special election limited to
Chicago winter would place unconstitutional burden on candidates).
The Court notes that a number of other candidates have sought to
participate in this action because the outcome of this case will affect their
access to the August primary ballot.18 In a separate order, the Court will
permit some of the proposed plaintiffs to join this lawsuit, but because
the State did not directly address the specifics of their factual claims,
they are not thoroughly discussed here. As to the question of how much
the signature requirement should be reduced, Plaintiff, who has already
obtained seventy percent of the signatures that he is required to obtain,
is asking the Court to reduce the number of signatures required to sixty
percent of the minimum number required pursuant to Section 168.544f.
ECF No. 10, PageID.165. Even such a reduction, however, would still
present a significant hurdle for otherwise viable candidates, including
those whose signature requirements are lower than Plaintiff’s.

For

example, candidates for certain city council positions subject to the April
21, 2020 deadline need only procure one hundred signatures. See
Bannister Decl. ¶ 5, ECF No. 15-2, PageID.273. Such a candidate may

18

See footnote seven, supra.

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be able to easily collect one hundred signatures in as little as one week
using traditional collection means like going door-to-door or canvassing
at community centers. Id. ¶ 10. These candidates may have relied,
reasonably and in good faith, on the ability to collect the vast majority of
the signatures they needed in late March or early April, when rising
temperatures would bring more people outside and facilitate signature
gathering. See, e.g., Jones, 921 F. Supp. 2d at 897. While any such linedrawing inevitably involves some degree of arbitrariness, common sense
suggests that a reasonably diligent candidate should be expected to have
reached the half-way point in gathering signatures when there is only
one month to go. Consequently, a reduction in the requirement by fifty
percent will be ordered. This reduction, combined with an extension of
the signature-gathering deadline until May 8, 2020, and the adoption of
an acceptable email-based method for collecting signatures, will be
sufficient in these unusual circumstances to ensure both sufficient access
to the ballot for those who seek it, and accommodation of the State’s
interest in ensuring candidates have a modicum of support before
inclusion on the ballot.

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IV.

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CONCLUSION

Accordingly, for all the reasons set out above, IT IS HEREBY
ORDERED:
- That all candidates:
o (i) who filed a statement of organization under the Federal
Election Campaign Act of 1971, 52 U.S.C. §§ 30101 et seq., or
established a candidate committee under the Michigan
Campaign Finance Law, Mich. Comp. Laws, §§ 169.201 et
seq., before March 10, 2020; and
o (ii) who are required by a relevant section of the Michigan
Election Law, Mich. Comp. Laws, §§ 168.1 et seq., to file a
nominating petition by April 21, 2020, for the purpose of
appearing on the August 4, 2020, primary election ballot; and
o (iii) who do not have the option under Michigan Election Law
to appear on the August 4, 2020, primary election ballot
through the payment of a filing fee in lieu of filing a
nominating petition;
-

Shall be qualified for inclusion on the August 4, 2020 primary
election ballot if the candidate submits fifty percent of the number
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of valid signatures required by Mich. Comp. Laws § 168.544f with
the appropriate filing official as provided by Michigan Election Law
by 5:00 p.m. on May 8, 2020. No other filing deadline is extended
under this Order.
- Furthermore, the Director of Elections shall within 72 hours of the
date of this Order adopt and promulgate, according to the
specifications it determines to be appropriate and efficient,
regulations providing for an additional optional procedure that
allows the collection and submission of ballot petition signatures in
digital form by electronic means such as email;
- Finally, the Director of Elections shall take all reasonable and
necessary steps to communicate the terms of this injunction to
county, township, and city clerks in this State who act as filing
officials for offices for which nominating petitions are due as
described in this Order.
IT IS SO ORDERED.
DATED this 20th day of April, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
40