Davis v. Johnson

• Decision Date: 17 June 2014
• Docket Number: Case No. 14–cv–11818.
• Citation: 26 F.Supp.3d 665
• Parties: Robert DAVIS, Plaintiff, v. Ruth JOHNSON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

26 F.Supp.3d 665

Robert DAVIS, Plaintiff
v.
Ruth JOHNSON, et al., Defendants.

Case No. 14–cv–11818.

United States District Court, E.D. Michigan, Southern Division.

Signed June 17, 2014.

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Andrew A. Paterson, Jr., Novi, MI, for Plaintiff.

Ann M. Sherman, Denise C. Barton, Erik A. Grill, Michigan Department of Attorney General, Lansing, MI, Nikkiya Branch, Perkins Law Group, PLLC, Janet Anderson–Davis, Detroit, MI, for Defendants.

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER (ECF # 5) AND DENYING INJUNCTIVE RELIEF

MATTHEW F. LEITMAN, District Judge.

Plaintiff Robert Davis (“Davis”) is a member of the Board of Education in Highland Park, Michigan (the “Board”). His term ends this year, and he desires to seek re-election. Under Michigan law, Davis may secure a spot on the general election ballot by paying a modest $100 filing fee. See MCL § 168.303 (the “Ballot Access Statute”). Davis concedes that the filing fee, which he can afford, is constitutional. Moreover, Davis acknowledges that the State has no obligation to provide non-indigent candidates with any additional ways to secure a place on the ballot.

But the State does provide Board candidates a second option for getting on the ballot: they may gather petition signatures from 40 registered voters in their school district.See MCL § 168.303(1)(b). Davis would prefer to use the petition signature option because, he says, it will best allow him to “gauge” the extent of his “support” among the electorate.

Davis' signature gathering plans have hit a snag. He would like to have certain individuals who are not registered to vote in Michigan (hereinafter, “nonregistered persons”) circulate his petitions, but a Michigan statute provides that petition signatures are valid only if, among other things, the individual circulating the petition is, himself, a registered voter in the State of Michigan. See MCL § 168.544c(3) (the “Registration Statute”).

In Nader v. Blackwell, 545 F.3d 459 (6th Cir.2008), the United States Court of Appeals for the Sixth Circuit held that a similar Ohio petition-circulator-registration statute severely burdened a candidate's speech and associational rights; was therefore subject to strict scrutiny; and could not survive such scrutiny. Invoking Nader, Davis argues that the Registration Statute severely burdens his First Amendment rights and that the statute cannot survive the required strict scrutiny. He seeks a temporary restraining order requiring Highland Park City Clerk Brenda Green (“Clerk Green”) to accept petition

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signatures gathered by nonregistered persons. The Court does not believe that Davis is likely to prevail on his First Amendment claim and declines to grant a temporary restraining order or a preliminary injunction.

The Ballot Access Statute and the Registration Statute operate in tandem and, together, they do not impose any meaningful burden on Davis' ballot-access or free-speech rights. The Ballot Access Statute provides Davis with easy access to the ballot: he need only pay the modest—and concededly constitutional—filing fee. And the Registration Statute does not prevent Davis from using non-registered persons to spread his message, to campaign on his behalf, or to gauge his support among voters. The Registration Statute prevents Davis from doing only one thing: using signatures gathered by non-registered persons to secure a place on the ballot. But he has no need to do that because the Ballot Access Statute gives him quick and simple access to the ballot. Davis has failed to show how his free-speech or ballot-access rights are seriously burdened.

This case is easily distinguishable from Nader because it appears that the candidate in Nader had to submit a minimum number of signatures to secure a spot on the ballot; there was no indication that the State of Ohio offered any other ballot-access options. Thus, the registration requirement in Nader —which limited the pool of circulators needed to gather the required signatures—meaningfully impeded the candidate's effort to obtain a place on the ballot and to participate fully in the electoral process. The Ballot Access and Registration Statutes impose no such burden on Davis, and thus the application of those statutes to Davis is likely reviewed under a relaxed level of scrutiny—a level of scrutiny the statutes can withstand.

Finally, apart from the merits, Davis does not present a strong claim for the extraordinary remedy he seeks. Davis acknowledged at a hearing before this Court that a primary “goal of this lawsuit is ultimately for [him] to get [himself] on the ballot,” yet he has intentionally chosen not to pursue several available options for doing just that. He has not attempted to gather petition signatures himself; he has not asked a number of eligible circulators with whom he would admittedly be “comfortable” to circulate his petitions; and he has declined to pay the small filing fee to secure ballot access while his legal challenge progresses. It appears that Davis' claimed urgent need for relief is largely an emergency of his own making.

BACKGROUND AND PROCEDURAL HISTORY

Davis is an incumbent member of the Board. (See Pla.'s Aff., ECF # 1–1 at ¶ 3.) Davis initially won election to the Board in 2002, and he retained his seat in 2006 and 2010. (Id. See also TR, ECF # 37 at 34–35, 39.) He is now seeking a fourth term in office. (See Pla.'s Aff. at ¶ 3.)

In order to secure a spot on the general-election ballot, Davis must satisfy the requirements of the Ballot Access Statute. He may do so in one of two ways. He may “file a nominating petition ... with the school district filing official not later than 4 p.m. on the fifteenth Tuesday before the election date,” MCL § 168.303(1), or, he “may pay a nonrefundable filing fee of $100.00 to the school district filing official.” MCL § 168.303(4). Under this statute, paying the “fee has the same effect ... as the filing of a nominating petition.” Id.

If Davis chooses the petition option, by not later than July 22, 2014, he must submit to Clerk Green—the “school district filing official” with whom candidates for the Board must file their nominating petitions,

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MCL §§ 380.6, 168.4(e) —nominating petitions signed by “a minimum of 40 and a maximum of 100” electors. MCL § 168.303(1)(b). (See also Aff. of Christopher Thomas, ECF # 22–2 at ¶¶ 5–7.) The Registration Statute establishes certain restrictions on who may circulate, and who may execute the required circulator certification on, such petitions. It provides that (1) “[a]t the time of circulation,” a person circulating a petition to place a candidate on the ballot for the Board (and certain other offices), “shall be a registered elector of this state” and (2) “[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 MCL § 168.544c(3). In the required “certificate of circulator,” the circulator “asserts that he or she is qualified to circulate the petition.” MCL § 168.544c(1).

Davis prefers the petition option over the filing fee option. (Pla.'s Aff. at ¶ 4.) But he does not want to comply with the Registration Statute's requirement that he use only registered Michigan voters to circulate his petitions. Instead, Davis “desire[s] and intend[s] to use citizens that are non-registered electors” as circulators of his nominating petitions.² (Id. at ¶ 5.)

Davis has spoken with Clerk Green and representatives of both Wayne County Clerk Cathy Garrett (“Clerk Garrett”) and Michigan Secretary of State Ruth Johnson (“Secretary Johnson”) about his choice of circulators. (Id. at ¶¶ 6–14.) On May 5, 2014, Davis telephoned Clerk Green, “informed [her] of [his] intentions to pick up nominating petitions for the upcoming school board election,” and told her of his “intention ... to utilize citizens that are not registered voters to circulate [his] nominating petitions.” (Id. at ¶ 6.) Clerk Green informed Davis that he “could not use citizens that were not registered electors” to circulate his petitions because the Registration Statute “only permits ... registered voters the right to circulate nominating petitions.” (Id. at ¶ 7.) Clerk Green also told Davis that “if [he] were to use non-registered electors to circulate [his] nominating petitions, none of the signatures contained on said petitions would be considered valid.” (Id. at ¶ 8.) Finally, Clerk Green said that “she would check with [Secretary Johnson's office] and/or [Clerk Garrett's office] to verify whether her stated interpretation and application of Michigan Election Law was correct.” (Id. at ¶ 9.)

Davis did not wait to hear back from Clerk Green. Instead, approximately 90 minutes after their conversation, Davis telephoned Delphine Oden (“Oden”), the Director of Elections for the Wayne County Clerk, “to verify whether [Clerk Green] “had called her to get advice and direction on [his] question....” (Id. at ¶ 11.) Oden said “that [Clerk Green] had called her seeking advice” and “that [Oden] had...