Priorities USA v. Nessel, Case No. 19-13341

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: Stephanie Dawkins Davis, United States District Judge
• Citation: 487 F.Supp.3d 599
• Parties: PRIORITIES USA, et al., Plaintiffs, v. Dana NESSEL, Defendant.
• Decision Date: 17 September 2020
• Docket Number: Case No. 19-13341

487 F.Supp.3d 599

PRIORITIES USA, et al., Plaintiffs,
v.
Dana NESSEL, Defendant.

Case No. 19-13341

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

Signed September 17, 2020

487 F.Supp.3d 603

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.

ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION (Dkt. 22)

Stephanie Dawkins Davis, United States District Judge

I. PROCEDURAL HISTORY

Plaintiff, Priorities USA, originally filed this action challenging two Michigan statutes, one governing the handling of absentee ballot applications in Michigan and the other governing transportation to polling places. (ECF No. 1). On January 27, 2020, plaintiffs filed an amended complaint, adding two additional plaintiffs, Rise, Inc. and Detroit/Downriver Chapter of the A. Philip

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Randolph Institute (DAPRI). (ECF No. 17). Defendant Nessel filed a motion to dismiss the amended complaint on February 10, 2020. (ECF No. 27). After oral argument, the Attorney General's motion to dismiss was granted in part and denied in part. (ECF No. 59). The court also heard and granted motions to intervene in this matter by the Michigan Republican Party and the Republican National Committee (the Republican Party) and the Michigan Senate and Michigan House of Representatives (the Legislature). (ECF Nos. 33, 39, 60).

Plaintiffs filed the instant motion for preliminary injunction to which the Attorney General responded. (ECF Nos. 22, 30). Upon their entry into the case, the court also permitted the Intervenors to file responses to the motion for preliminary injunction, which they did on June 5, 2020. (ECF Nos. 68, 70). Plaintiffs filed replies to all response briefs. (ECF Nos. 41, 73). The court held a hearing via video on July 14, 2020, pursuant to notice. (ECF No. 74).

For the reasons the follow, the court DENIES plaintiffs’ motion for preliminary injunction with respect the Absentee Ballot Law and GRANTS the request for preliminary injunction regarding the Voter Transportation Law.

II. FACTUAL BACKGROUND

Priorities USA is a 501(c)(4) nonprofit corporation, self-described as 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 activities to "educate, mobilize, and turn out voters" in Michigan, and "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. It "runs statewide advocacy and voter mobilization programs in Michigan and California, as well as on a number of campuses nationwide." (ECF No. 17, PageID.93, ¶ 8). Rise asserts 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; it has eleven student organizers who are paid to organize their campuses around voter education and turnout activities. Rise plans to continue this program through the 2020 election. Id. at 9. This effort has included and will continue to include engaging 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 (Detroit) chapter of the A. Philip Randolph Institute, 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). Its members are "involved in voter registration, get-out-the-vote activities, political and community education, lobbying, legislative action, and labor support activities in Michigan. Id. As part of its get-out-the-vote activities, DAPRI's members have "provided rides" to and from the polls for community members on election day; the organization intends to continue this practice and to expand this work in future elections. Id. at ¶ 16. DAPRI acknowledges that Proposal 3, which passed in 2018, makes absentee voting available to

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all and says that it would like to educate voters about the opportunity to vote absentee. (ECF No. 17, PageID.96, ¶ 17).

All three non-profit corporations challenge what they refer to as Michigan's "Absentee Ballot Organizing Ban" (hereinafter the "Absentee Ballot Law") ( Mich. Comp. Laws § 168.759(4), (5), (8) ) (see ECF No. 17, PageID.107-112, ¶¶ 48-55) and its "Voter Transportation Ban" (hereinafter the "Voter Transportation Law") ( Mich. Comp. Laws § 168.931(1)(f) ) (see ECF No. 17 PageID.101-107, ¶¶ 33-47). Specifically, they contend that the Absentee Ballot Law is (1) unconstitutionally vague and overbroad under the First and Fourteenth Amendments (Count I); (2) violative of their Speech and Association rights under the First and Fourteenth Amendments (Count II); and (3) preempted by Section 208 of the Voting Rights Act of 1965 (Count IV). Similarly, they assert that the Voter Transportation Law is (1) unconstitutionally vague and overbroad under the First and Fourteenth Amendments (Count V); (2) violative of their Speech and Association rights under the First and Fourteenth Amendments (Count VI); and (3) preempted by Section 208 of the Voting Rights Act of 1965 (Count VIII). (ECF No. 17). The court previously dismissed plaintiffs’ claims that the laws place an undue burden on the fundamental right to vote (Counts III and VII). (ECF No. 59).

III. STATUTORY SCHEMES

A. Absentee Ballot Law, Mich. Comp. Laws § 168.759

Michigan's Absentee Ballot Law provides that a voter must request an application and submit that application to the voter's local clerk in order to receive an absentee voter ("AV") ballot. For both primaries and regular elections, an elector may apply for an AV ballot at any time during the 75 days leading up to the primary or election until 8 p.m. on the day of the primary or election. Mich. Comp. Laws § 168.759(1) - (2). In either case, "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

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the following form." The statute 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

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