Priorities USA v. Nessel

• Decision Date: 22 May 2020
• Docket Number: Case No. 19-13341
• Citation: 462 F.Supp.3d 792
• Parties: PRIORITIES USA, et al., Plaintiffs v. Dana NESSEL, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

462 F.Supp.3d 792

PRIORITIES USA, et al., Plaintiffs

v.Dana NESSEL, Defendant.

Case No. 19-13341

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

Signed May 22, 2020

Amanda Beane, Kevin J. Hamilton, Perkins Coie LLP, Seattle, WA, Christopher J. Bryant, Courtney Elgart, Marc E. Elias, Perkins Coie LLP, Washington, DC, Sarah Prescott, Salvatore Prescott, PLLC, Northville, MI, for Plaintiff Priorities USA.

Amanda Beane, Perkins Coie LLP, Seattle, WA, Christopher J. Bryant, Courtney Elgart, Marc E. Elias, Perkins Coie LLP, Washington, DC, Sarah Prescott, Salvatore Prescott, PLLC, Northville, MI, for Plaintiffs Rise, Inc., Detroit/Downriver Chapter of the A. Philip Randolph Institute.

Erik A. Grill, Heather S. Meingast, Michigan Department of Attorney General, Lansing, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (ECF No. 29)

Stephanie Dawkins Davis, United States District Judge

I. PROCEDURAL HISTORY

Plaintiff, Priorities USA, originally filed this action challenging two Michigan statutes, one governing the absentee ballot process in Michigan and the other governing transportation to polling places. (ECF No. 1). Defendant, Michigan Attorney General Dana Nessel, moved to dismiss the complaint on December 20, 2019. (ECF No. 10). Shortly, thereafter, District Judge Marc A. Goldsmith, to whom this matter was previously assigned, entered an order allowing Priorities to file an amended complaint to address the issues raised in the motion to dismiss. (ECF No. 13). On January 27, 2020, plaintiffs filed an amended complaint, adding two additional plaintiffs, Rise, Inc. and Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI). (ECF No. 17). Defendant filed a motion to dismiss the amended complaint on February 10, 2020. (ECF No. 27). This matter is fully briefed. (ECF Nos. 40, 44). The Court held a hearing via video, pursuant to notice, on May 8, 2020. (ECF No. 56).

For the reasons set forth below, defendant's motion to dismiss the amended complaint is GRANTED in part and DENIED in part. Counts III and VII are DISMISSED and all remaining counts are left intact.

II. FACTUAL BACKGROUND AND THE AMENDED COMPLAINT

Priorities is a 501(c)(4) nonprofit corporation and a "voter-centric progressive advocacy and service organization." (ECF No. 17, PageID.92, ¶ 7). Its "mission is to build a permanent infrastructure to engage Americans by persuading and mobilizing citizens around issues and elections that affect their lives." Id. It engages in activity to "educate, mobilize, and turn out voters" in Michigan, and states that it "expects to" make expenditures and contributions towards those objectives in upcoming Michigan state and federal elections. Id.

Rise is also a 501(c)(4) nonprofit organization that "runs statewide advocacy and voter mobilization programs in Michigan and California, as well on a number of campuses nationwide." (ECF No. 17, PageID.93, ¶ 8). Rise claims that "efforts to empower and mobilize students as participants in the political process ... are critical to Rise's mission because building political power within the student population is a necessary condition to achieving its policy goals." Id. Rise launched its second state-specific campaign in Michigan in 2019, and says it has eleven student organizers who are paid to organize their campuses including voter education and turnout activities. Rise plans to continue this program through the 2020 elections. Id. at 9. This effort has included and will continue to include engaging their fellow students in grassroots voter education, registration, and turnout activities, including on-campus, get-out-the-vote drives and canvasses. Id.

DAPRI is a local chapter of a national 501(c)(3) nonprofit organization. It is a membership organization "with a mission to continue to fight for Human Equality and Economic Justice and to seek structural changes through the American democratic process." (ECF No. 17, PageID.95, ¶ 14). It has members who are "involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in Michigan. Id. DAPRI's members have "provided rides" to and from the polls for the community on election day and intends to continue to do so and to expand this work in future elections. Id. at ¶ 16. DAPRI acknowledges that Proposal 3 makes absentee voting available to all, and says that it would like to educate voters about the opportunity to vote absentee. (ECF No. 17, PageID.96, ¶ 17).

The Absentee Ballot Law provides that, in order to receive an AV ballot, a voter must request an application and submit that application to the voter's local clerk. For both primaries and regular elections, an elector may apply for an AV ballot at any time during the 75 days preceding the primary or election. Mich. Comp. Laws § 168.759(1) - (2). In both cases, "the elector shall apply in person or by mail with the clerk" of the township or city in which the elector is registered. Id. Subsection 759(3) provides that:

(3) An application for an absent voter ballot under this section may be made in any of the following ways:

(a) By a written request signed by the voter.

(b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.

(c) On a federal postcard application.

(4) An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant's immediate family; a person residing in the applicant's household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.

(5) The clerk of a city or township shall have absent voter ballot application forms available in the clerk's office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request.

Mich. Comp. Laws §§ 168.759(3) - (5)

Where a form application is used, under § 759(5), the "application shall be in substantially the following form," which then provides the body of the form and includes a general "warning" and a "certificate" portion for "a registered elector" delivering a completed application for a voter. Mich. Comp. Laws § 168.759(5). The warning must state that:

It is a violation of Michigan election law for a person other than those listed in the instructions to return, offer to return, agree to return, or solicit to return your absent voter ballot application to the clerk. An assistant authorized by the clerk who receives absent voter ballot applications at a location other than the clerk's office must have credentials signed by the clerk. Ask to see his or her credentials before entrusting your application with a person claiming to have the clerk's authorization to return your application.

Id.

Similarly, the certificate for a registered elector returning an AV ballot application must state that:

I am delivering the absent voter ballot application of [the named voter] at his or her request; that I did not solicit or request to return the application; that I have not made any markings on the application; that I have not altered the application in any way; that I have not influenced the applicant; and that I am aware that a false statement in this certificate is a violation of Michigan election law.

Id.

Under § 759(6), the application form must include the following instructions for an applicant:

Step 1. After completely filling out the application, sign and date the application in the place designated. Your signature must appear on the application or you will not receive an absent voter ballot.

Step 2. Deliver the application by 1 of the following methods:

(a) Place the application in an envelope addressed to the appropriate clerk and place the necessary postage upon the return envelope and deposit it in the United States mail or with another public postal service, express mail service, parcel post service, or common carrier.

(b) Deliver the application personally to the clerk's office, to the clerk, or to an authorized assistant of the clerk.

(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or a person residing in the voter's household may mail or deliver the application to the clerk for the applicant.

(d) If an applicant cannot return the application in any of the above methods, the applicant may select any registered elector to return the application. The person returning the application must sign and return the certificate at the bottom of the application.

Mich. Comp. Laws § 168.759(6).

Consistent with these statutes, § 759(8) provides that "[a] person who is not authorized in this act and who both distributes absent voter ballot applications to absent voters and returns those absent voter ballot applications to a clerk or assistant of the clerk is guilty of a misdemeanor." Mich. Comp Laws § 168.759(8). Section 931 also provides for penalties associated with distributing and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931(1)(b)(iv) and (1)(n).

Based on these provisions, there are two ways to apply for an AV ballot: (1) a written request signed by the voter, and (2) on an AV ballot application form provided for that purpose. In both cases, the voter applies by returning a written request or form...