Gelineau v. Johnson
| Decision Date | 02 October 2012 |
| Docket Number | No. 1:12–cv–976.,1:12–cv–976. |
| Citation | 904 F.Supp.2d 742 |
| Parties | William GELINEAU, Gary E. Johnson, and Libertarian Party of Michigan, Plaintiffs, v. Ruth JOHNSON, Secretary of State of Michigan, in her official capacity, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
OPINION TEXT STARTS HERE
Thomas S. Baker, Jason C. Miller, Miller Johnson PLC, Grand Rapids, MI, for Plaintiffs.
Denise C. Barton, Nicole Amber Grimm, MI Dept. Attorney General, Lansing, MI, for Defendant.
Before the court is Plaintiffs' second motion for injunctive relief regarding the Libertarian Party's presence on the ballot in Michigan's rapidly approaching presidential election. In their first motion, Plaintiffs—the Libertarian Party of Michigan; Gary E. Johnson, the party's backup candidate for President; and William Gelineau, a Michigan citizen—sought to force Michigan's Secretary of State to include Gary E. Johnson on the ballot as the Libertarian Party's nominee for President. (ECF No. 3.) This court denied injunctive relief on laches grounds (ECF No. 11), and the Sixth Circuit affirmed (ECF Nos. 14–15).
In this latest motion, Plaintiffs raise claims regarding Judge James P. Gray, the Party's putative nominee for Vice President. (ECF No. 21.) In particular, they ask the court to ensure that the Secretary (1) keep proper records of “straight-ticket” votes cast for the Libertarian Party; (2) count such votes as votes for Gray for Vice President; and (3) print Gray's name on the ballot as the Libertarian Party's nominee for Vice President.
For the reasons discussed below, the court will deny Plaintiffs' motion.
On June 2, 2012, the Libertarian Party of Michigan held its state convention. The Party nominated Gary Johnson, the former governor of New Mexico, as its candidate for President, and Judge James P. Gray as its candidate for Vice President. Johnson was an apparent recent convert to the Party. Before he switched in late 2011, Mr. Johnson had been running for President as a Republican, and his name had been listed on the Michigan Republican Party's primary ballot in early 2012.
Michigan law states that “[n]o person whose name was printed or placed on the primary ballots or voting machines as a candidate for nomination on the primary ballots of 1 political party shall be eligible as a candidate of any other political party at the election following that primary.” Mich. Comp. Laws § 168.695. The Libertarian Party recognized that this provision, commonly known as the “sore-loser statute,” potentially applied to Mr. Johnson. Indeed, as early as May 3, 2012, Michigan's Secretary of State took the position that she would refuse to include Gary Johnson's name on the ballot as the Libertarian Party's candidate.
To prepare for this possibility, the Libertarian Party of Michigan took what appears to be a novel step: it nominated a backup candidate. In particular, the Party nominated Gary E. Johnson, a Texas citizen, as its stand-in candidate in the event that the Secretary followed through on her resolution to keep the original Gary Johnson off the state general election ballot. On June 2, 2012, the Party certified their nomination(s) to the Secretary, as required by Mich. Comp. Laws § 168.686.
On June 25, 2012, the Libertarian Party of Michigan, along with Gary Johnson and Denee Rockman–Moon, chair of the Party and a Michigan voter, filed suit in the Eastern District of Michigan. Complaint, Libertarian Party of Mich. v. Johnson, No. 2:12–cv–12782 (E.D.Mich. June 25, 2012). The plaintiffs claimed that the sore-loser statute did not apply to Mr. Johnson, and that if it did, the statute would violate their First and Fourteenth Amendment rights. Id. At a motion hearing on September 6, 2012, District Judge Paul Borman granted the Secretary of State's motion to dismiss the plaintiffs' claims. Shortly thereafter, Judge Borman followed up with a written opinion. Libertarian Party of Mich. v. Johnson, No. 2:12–cv–12782, 905 F.Supp.2d 751, 2012 WL 3930557 (E.D.Mich. Sept. 10, 2012).
On September 7, the day after Judge Borman dismissed Gary Johnson's case, the Secretary of State (through Christopher Thomas, Michigan's Director of Elections) informed the Party that Gary E. Johnson's name would not appear on the ballot either. Mr. Thomas explained that “no provision of the Michigan Election Law authorizes a political party to nominate a contingent or stand-in candidate.”
On September 11, 2012, the Libertarian Party of Michigan, Gary E. Johnson, and William Gelineau, a Michigan citizen who allegedly wishes to vote for Gary E. Johnson, filed suit in this court. (ECF No. 1.) Plaintiffs argue that the Party properly nominated Gary E. Johnson as its alternative candidate in case the Secretary of State refused to place Gary Johnson on the ballot, and that the Secretary's refusal to recognize Gary E. as such violates their rights under the First and Fourteenth Amendments to the United States Constitution. ( Id.) Plaintiffs requested expedited consideration, noting that the Secretary planned to send ballots to the printers on September 13 or 14. The following day, Plaintiffs filed a motion for temporary restraining order. (ECF No. 3.) After ordering expedited briefing on the motion, this court declined to order injunctive relief, holding that Plaintiffs' claim was barred by laches. (ECF No. 11.) On interlocutory appeal, the Sixth Circuit affirmed. (ECF No. 12.)
Nine days after this court denied the motion for injunctive relief, Plaintiffs amended their complaint to include allegations that Judge Gray was properly nominated for the vice-presidency. (ECF No. 18.) For his part, Plaintiff Gelineau alleges that he wishes to vote for Judge Gray for Vice President. ( Id.) Along with their amended complaint, Plaintiffs filed a second motion for temporary restraining order and preliminary injunction asking the court to place Judge Gray on the ballot and to ensure that votes for him, or straight-ticket votes for the Libertarian Party, will be properly counted. (ECF No. 21.)
In deciding whether to grant injunctive relief, a court must consider four factors: (1) whether the moving party demonstrates a strong likelihood of success on the merits; (2) whether the moving party would suffer irreparable injury without the order; (3) whether the order would cause substantial harm to others; and (4) whether the public interest would be served by the order. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.2008) ).
III. DiscussionA. Laches
First, to the extent that Plaintiffs ask the court to modify Michigan's ballots to include Judge Gray, their motion fails for much the same reason as their first motion. Plaintiffs have known since early May that there was a substantial question about whether the Party's presidential nominee was eligible for the ballot. This itself should raise questions about the Party's vice-presidential nominee, and indeed, Plaintiffs state that they “contacted the Secretary numerous times about the status of its candidate, [though] the Secretary never addressed Judge Gray.” In any case, Plaintiffs either knew or should have known that Michigan law does not provide for individual candidates for President or Vice President, but rather for party tickets consisting of a nominee for each position. At the very least, a substantial question about Judge Gray's candidacy has been clear for months. Yet Plaintiffs showed no diligence in asserting their rights until a mere 40 days before the election, after the state began printing ballots and indeed after their first motion to modify the ballots failed. The prejudice from this delay is even greater than that from Plaintiffs' first motion, and Plaintiffs make no serious effort to distinguish this situation. To the extent they seek to change the State's ballots, their claim fails under the doctrine of laches.
To the extent that Plaintiffs' claim survives, the court will address the merits of their argument below.
B. Merits
Plaintiffs' argument is based on the following premises. They assert that the Party properly nominated Judge Gray as its candidate for Vice President, regardless of whether either Johnson was properly nominated for President. Therefore, Michigan law obligates the Secretary to place Judge Gray on the ballot. The Secretary's failure to do so, or to count straight-ticket Libertarian Party votes as votes for Judge Gray, would deny citizens such as Mr. Gelineau the right to vote for their candidate of choice. Further, the Party itself would suffer, if not through failure to elect its candidate, then through (unspecified) collateral consequences of receivingno votes for President and Vice President in the state's election. Finally, Plaintiffs argue, the State has no legitimate interest in keeping Judge Gray off the ballot. It therefore has no constitutional right to deny him votes and cannot claim any irreparable harm from the requested injunctive relief.
Plaintiffs' argument assumes that the ballot status of a political party's vice-presidential nominee is entirely independent of the status of its presidential nominee, and that nominating a candidate to only one of these two positions creates no particular legal problems. This is far from obvious, however. Indeed, the entire concept of an individual's vote for President or Vice President is a simplifying fiction. As every schoolchild learns (or should learn), the President and Vice President are elected not by the people of the United States directly, but by the Electoral College. Under the Constitution, each state is directed to appoint one elector for each Senator or Representative it elects to Congress. U.S. Const. art. II, § 1, cl. 2. ...
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