Priorities U.S. v. Nessel, 2:19-cv-13341

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
PartiesPRIORITIES USA, et al., Plaintiffs, v. DANA NESSEL, Defendant.
Docket Number2:19-cv-13341
Decision Date15 September 2022

PRIORITIES USA, et al., Plaintiffs,

DANA NESSEL, Defendant.

No. 2:19-cv-13341

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

September 15, 2022



Plaintiffs have challenged Michigan's laws on voter transportation and absentee ballot organizing. ECF 1. The case was originally assigned to Judge Mark A. Goldsmith until it was reassigned to Judge Stephanie Dawkins Davis in January 2020. See 20-AO-010. In two-and-one-half years' time, Judge Dawkins Davis made several significant rulings in the case before she was elevated to a judgeship on the United States Court of Appeals for the Sixth Circuit. During her tenure presiding on the case, the Court granted in part and denied in part Attorney General Dana Nessel's motion to dismiss. ECF 59; Priorities USA v. Nessel, 462 F.Supp.3d 794, 799 (E.D. Mich. 2020).

Prior to Judge Dawkins Davis' elevation, the Court also granted motions to intervene that were made by the Michigan Senate and House of Representatives, and


the Michigan Republican Party and the Republican National Committee. ECF 60.[1]Shortly before the 2020 general election, the Court preliminarily enjoined the voter-transportation law, Mich. Comp. Laws § 168.931(1)(f), but not the absentee-ballot law, Mich. Comp. Laws § 168.759(4), (5), (8). Priorities USA v. Nessel, 487 F.Supp.3d 599, 604 (E.D. Mich. 2020).

The Sixth Circuit promptly stayed the preliminary injunction pending appeal. Priorities USA v. Nessel, 978 F.3d 976, 979 (2020). The Sixth Circuit then reversed the preliminary injunction “[f]or largely the same reasons as in [its] earlier order.” Priorities USA v. Nessel, 860 Fed.Appx. 419, 420 (2021).

A few months later, the Legislative Intervenors and the Republican Intervenors moved for judgments on the pleadings. ECF 113; 115.[2] The motions have been unresolved for almost a year. During that time, the parties moved to exclude testimony from certain experts under Federal Rule of Evidence 702. ECF 148; 153; 155. The parties also cross-moved for summary judgment. ECF 149; 150; 152; 154. And Uber Technologies moved for leave to file an amicus brief in support of Plaintiffs' summary judgment motion. ECF 157. Those motions have been pending for six months.

Three months ago, after Judge Dawkins Davis was confirmed, the case was reassigned, see 22-AO-036, and two district judges recused themselves. ECF 186; 187.


The case was then assigned here. For the following reasons, the Court will grant the pending motions for judgment on the pleadings. ECF 113;[3] 115.


In the interest of judicial economy, the Court will adopt the background sections from Judge Dawkins Davis' earlier orders. Priorities USA, 487 F.Supp.3d at 603-08; Priorities USA, 462 F.Supp.3d at 799-802. The Court will also incorporate the factual and procedural background detailed in the parties' helpful joint status report. ECF 188, PgID 6842-48. The Court will add the following background.

Only claims two, four, five, and six in the amended complaint remain. ECF 188, PgID 6844 (citing ECF 109, PgID 1852-53).[4] Claims two and four challenge the absentee-ballot law.[5] ECF 17, PgID 114-16, 118-21. Claim two is a speech and associational rights challenge under the First and Fourteenth Amendments, id.


at 114-16, and claim four is a preemption challenge based on Section 208 of the Voting Rights Act (“VRA”), id. at 118-21. Claims five and six challenge the voter-transportation law.[6] Id. at 121-24. Claim five is a vagueness and overbreadth challenge, id. at 121-22, and claim six is a speech and associational rights challenge under the First and Fourteenth Amendments, id. at 122-24.

The Court previously denied Attorney General Nessel's motion to dismiss four challenges. Priorities USA, 462 F.Supp.3d at 815-16 (absentee-ballot law), 818-19 (voter-transportation law). When the preliminary injunction order went up on appeal, the Sixth Circuit held that Plaintiffs were unlikely to prevail in a now-abandoned challenge to the voter-transportation law. Priorities USA, 978 F.3d at 982-85. The Sixth Circuit later held that “[a]lthough [the panel] did not specifically discuss [Plaintiffs'] First Amendment argument. . ., [the panel] did not-and still [does] not-find it likely to succeed.” Priorities USA, 860 Fed.Appx. at 422 n.3. As the Sixth Circuit put it, “First Amendment challenges to state election regulations” are “generally evaluate[d]” “using the Anderson-Burdick framework.” Id. (internal quotations omitted) (quoting Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019)). And under that framework, the Sixth Circuit confirmed that Plaintiffs “do not seem likely to shoulder th[e] heavy burden” to show that the voter-transportation law is “a severe burden on their rights.” Id.


When the previously assigned judge granted the motions to intervene, the Court ordered that any Intervenor dispositive motion response to the amended complaint was “limited to issues not already addressed and resolved through the Court's opinion and order regarding Nessel's motion to dismiss.” ECF 60, PgID 102627. The Court repeated the command after the Sixth Circuit's second opinion. ECF 110, PgID 1874 (“As explained in the Order Granting the Motions to Intervene, such dispositive motions must be limited to issues not already addressed and resolved through the Court's opinion regarding [| Nessel's motion to dismiss.”) (citing ECF 60, PgID 1026-27).


The Court reviews a Rule 12(c) motion for judgment on the pleadings with the same standard it would employ for a Rule 12(b)(6) motion to dismiss. Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549-50 (6th Cir. 2008) (citation omitted). The Court accepts as true all well-pleaded material allegations of the pleadings and draws reasonable factual inferences in favor of the non-moving party, but “need not accept as true legal conclusions or unwarranted factual inferences.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581-82 (6th Cir. 2007) (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). The complaint must “raise a right to relief above the speculative level, and [] state a claim to relief that is plausible on its face.” Hensley Mfg., Inc. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). It is not enough to offer mere ‘“labels and conclusions' or ‘a formulaic recitation of the elements of a


cause of action.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

Plaintiffs who assert “a broad attack on the constitutionality of election laws” and “seek relief that would invalidate the statute in all its applications bear a heavy burden of persuasion.” Priorities USA, 860 Fed.Appx. at 422 n.3 (cleaned up); see also Ohio Council 8 Am. Fed'n of State v. Husted, 814 F.3d 329, 338 (6th Cir. 2016) (quoting Schrader v. Blackwell, 241 F.3d 783, 790-91 (6th Cir. 2001)).


The Court will first clarify why Intervenors and Attorney General Nessel properly asserted arguments in the Rule 12(c) motion despite the previously assigned judge's orders that limited the arguments they can raise in dispositive motions. After, the Court will grant the Rule 12(c) motions.[7]

I. The Court's Earlier Orders

Plaintiffs first asserted that the Court should deny the Rule 12(c) motions because Intervenors cannot “relitigat[e] issues already decided in [the] decision denying the Attorney General's motion to dismiss.” ECF 121, PgID 1966. Doing so would be “in direct contravention of this Court's prior orders.” Id. at 1968. The Court disagrees for five reasons.


First, the previously assigned judge's May 2020 order limited the arguments that Intervenors could assert in any responsive motion or pleading to the amended complaint. ECF 60, PgID 1026-27. Intervenors ultimately answered the amended complaint rather than responding with a motion, ECF 61; 62, as did Attorney General Nessel, ECF 65. At that time, the pleadings closed. Wells Fargo Fin. Leasing, Inc. v. Griffin, 970 F.Supp.2d 700, 705 (W.D. Ky. 2013) (collecting cases finding that the pleadings close when all defendants file an answer). Because the pleadings closed, the order's plain text, ECF 60, PgID 1026-27, did not apply to any Rule 12(c) motion.

Two, foreclosing any Rule 12(c) motion based on the September 2021 order, ECF 110, PgID 1874, would require the Court to stretch the text of the order to apply to all dispositive motions. That reading would be clearly erroneous and manifestly unjust. See Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed.Appx. 949, 959 & n.7 (6th Cir. 2004) (explaining that the Court has “significant discretion” under Rule 54(b) to review interlocutory orders when there is “a need to correct a clear error or prevent manifest injustice”). Barring intervening parties from reasserting arguments that the Court denied at the start of the litigation would effectively sideline Intervenors from pursuing legitimate arguments under a motion for judgment on the pleadings, a summary judgment motion, at trial, or even in postjudgment motions. Based on those potentially absurd results, the case management order does not preclude Intervenors from asserting the arguments in their Rule 12(c) motions.


Three, even if the Court were to agree that the orders barred Intervenors from asserting the arguments in the Rule 12(c) motion, the orders do not prevent the Attorney General from doing so. Again, the May 2020 order applied only to responsive pleadings from Intervenors. ECF 60, PgID 1026-27 (“[Intervenors] must answer or otherwise respond to the amended complaint within ten (10) days of this opinion and order. To the extent that the responses come in the form of dispositive motions, the motions are limited to issues not...

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