Kishore v. Whitmer
| Decision Date | 08 July 2020 |
| Docket Number | Case No. 20-11605 |
| Parties | Joseph Kishore, et al., Plaintiffs, v. Gretchen Whitmer, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiffs Joseph Kishore and Norissa Santa Cruz filed this action challenging Michigan's ballot-access requirements for independent candidates for the office of President of the United States, which require an individual to gather and submit physical signatures, on the grounds that those requirements are impossible for Plaintiffs to fulfil during the ongoing COVID-19 pandemic and in light of Governor Gretchen Whitmer's executive orders issued during the pandemic. Plaintiffs assert that the State's enforcement of both Michigan's ballot-access requirements and those orders operate to impose a severe burden on their ability to seek elective office and vote for the candidates of their choice, in violation of their constitutional rights. They challenge Michigan's application of its ballot-access requirements as applied to them and seek a preliminary injunction from this Court, ordering Defendants to place their names on the November 2020 ballot. A hearing on the Motion for Preliminary Injunction was held on July 2, 2020.
As explained more fully below, the Court shall deny the motion. Under the applicable Anderson-Burdick framework, Plaintiffs have not shown that the challenged statutes and orders impose a "severe burden" on them. A severe burden excludes or virtually excludes electors from the ballot. Plaintiffs have not shown that Michigan's ballot-access requirements, combined with the Governor's executive orders, exclude or virtually exclude them from the ballot. A reasonably diligent candidate could be expected to satisfy the State's ballot-access requirements under the circumstances presented - where Plaintiffs had a six-month period to meet an already-reduced requirement of obtaining 12,000 signatures and where the Governor's Stay-at-Home Order only restricted them from gathering signatures in-person during the middle third of that time period. But Plaintiffs were not diligent here, where they announced their intention to run back in January, but then never prepared a qualifying petition or obtained a single signature in support of Kishore's candidacy. Under these circumstances, the Court concludes that the burden on these Plaintiffs is somewhere between the minimal and severe burdens discussed in Anderson and Burdick and, therefore, intermediate scrutiny should be applied.
The Court further concludes that the State's well-established and legitimate interests in administering its ballot-access requirements outweigh the intermediate burden those regulations place on Plaintiffs. As such, Plaintiffs have not shown a substantial likelihood of success on the merits of their constitutional claims. The Court concludes that the remaining factors also weigh against the requested injunction.
Under Michigan election law, in order to appear on the general election ballot, independent candidates for the office of President of the United States are required to file a qualifying petition with the Michigan Secretary of State's office by 4:00 p.m. on the 110th daybefore the general election. Mich. Comp. Laws § 168.590c(2). It is undisputed that this year's deadline is July 16, 2020 (110 days before the November 3, 2020 election).
Pursuant to Mich. Comp. Laws § 168.544f, a qualifying petition must include a minimum of 30,000 and up to 60,000 signatures of qualified and registered electors in the State of Michigan. It is undisputed, however, that a permanent injunction issued in Graveline v. Johnson, 430 F. Supp.3d 297 (E.D. Mich. Dec. 22, 2019) reduces that signature requirement down to 12,000 - less than half of the minimum statutory requirement - at the present time.1
Mich. Comp. Laws § 168.590b(4) requires that a qualifying petition for the office of president of the United States must be signed by 100 registered electors in each of at least half of Michigan's 14 congressional districts. The signatures on a qualifying petition must be gathered within the 180-day period prior to the date of filing the petition, pursuant to Mich. Comp. Laws § 168.590b(3).
Kishore is a resident of Berkley, Michigan and is a registered voter in Michigan. (Kishore Affidavit). Kishore wishes to run for the office of President of the United States and would have Santa Cruz serve as his running mate. Plaintiffs wish to represent the views of the Socialist Equality Party ("SEP").
On January 21, 2020, Plaintiffs filed their Statements of Candidacy with the Federal Election Commission. (Compl. at ¶ 23; see also Kishore Affidavit).
Given the July 16 deadline for filing a qualifying petition (Mich. Comp. Laws § 168.590c(2)), and the requirement that signatures cannot be older than 180 days before thepetition is filed (Mich. Comp. Laws §168.590b(3)), Kishore had a window of time from January 18, 2020 to July 16, 2020 to prepare a qualifying petition and obtain the required signatures. Notably, however, Plaintiffs have not prepared a qualifying petition or obtained a single signature in support of Kishore's candidacy. .
"Prior to and after announcing their candidacies, Plaintiffs and their election staff planned a national ballot access drive." (Compl. at ¶ 4). Plaintiffs state that the "World Socialist Web Site (wsws.org), the political organ of the SEP and its sister parties worldwide, is the most widely-read socialist publication on the Internet" and that "[i]t was accessed by 3.2 million unique visitors between January 1 and April 26, 2020." (Compl. at ¶ 7). "Plaintiffs announced their candidacies in an online video on January 26, 2020 (accessible at socialism2020.org), having timely filed their statements of candidacy on January 21, 2020." (Compl. at ¶ 8).
After announcing their campaigns, Plaintiffs' staff of campaign volunteers began "organizing a series of physical meetings in Michigan" to launch the campaign. (Kishore Affidavit).
For example, the "first public campaign event" was held at the University of Michigan in Ann Arbor, Michigan on February 24, 2020. Three days later, on February 27, a second public campaign meeting was held at Wayne State University in Detroit. (Id.). Plaintiffs state that those events were promoted widely at both campuses and also at workplaces and public locations in the surrounding areas. (Id.). Nevertheless, Plaintiffs did not obtain a single signature on a qualifying petition for Kishore during any of those in-person events.
In early March, Kishore traveled to California for out-of-state campaign meetings. Kishore was in California on March 3rd through March 5th then returned to Michigan. Kishorestates that "[s]hortly after returning, my campaign decided to cancel all subsequent public events and campaign activity, including ballot gathering initiatives, in order to protect volunteers, staff and the public at large from spreading the coronavirus." (Kishore Affidavit at 2) (emphasis added) .
Thus, during the first week of March, Plaintiffs made the decision to cease all campaign activity, and take no action to obtain signatures for a qualifying petition for Kishore. As of that point in time, Plaintiffs had not prepared a qualifying petition or collected a single signature in support of Kishore's candidacy.
On March 10, 2020, Michigan's first two COVID-19 cases were announced and Governor Gretchen Whitmer declared a state of emergency and invoked emergency powers in Executive Order No. 2020-4.2 While that order noted the serious nature of the virus, which "can easily spread from person to person," and could "result in serious illness or death," it did not restrict the movement or gathering of people in Michigan.
Thereafter, the Governor issued a series of executive orders to mitigate the spread of the virus in Michigan.
A March 13, 2020 order (Executive Order No. 2020-5) prohibited assemblages of 250 or more people in a single shared space, with limited exceptions, and ordered the closure of all K-12 schools in Michigan. That Order stated that its "prohibition [did] not abridge protections guaranteed by the state or federal constitution under these emergency circumstances." That language will be referred to as the "Constitutional Exemption Language."
A March 16, 2020 order (Executive Order No. 2020-9) ordered various places of public accommodation, such as restaurants, bars and gyms, to close their premises to the public.
A March 17, 2020 order (Executive Order No. 2020-11) prohibited the assembly of more than 50 people in a shared space. This order included the Constitutional Exemption Language.
Then, on March 23, 2020, the Governor issued what became known as the "Stay-at-Home Order" (Executive Order No. 2020-21). That order essentially ordered all persons in Michigan who were not performing essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, engage in outdoor activity consistent with social distancing, and other limited exceptions. It also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household. Although the order was to continue through April 13, 2020, subsequent orders (Executive Order Nos. 2020-42 and 2020-59) extended the Stay-at-Home Order until May 15, 2020. Notably, these orders did not include the Constitutional Exemption Language.
On May 1, 2020, the Governor issued Executive Order No. 2020-70, which rescinded Executive Order No. 2020-59, but kept the general "stay-at-home" restrictions with some additional exceptions.
On May 7, 2020, the Governor issued Executive Order No....
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