Stein v. Thomas
| Decision Date | 06 December 2016 |
| Docket Number | No. 16-2690,16-2690 |
| Parties | JILL STEIN and LOUIS NOVAK, Plaintiffs-Appellees, v. CHRISTOPHER M. THOMAS, in his official capacity as Director of Elections for the State of Michigan, & JEANETTE BRADSHAW, NORMAN D. SHINKLE, JULIE MATUZAK, and COLLEEN PERO, in their official capacities as Members of the Michigan Board of Canvassers, Defendants, & The MICHIGAN REPUBLICAN PARTY, & WILLIAM D. SCHUETTE, in his official capacity as Attorney General of the State of Michigan, Intervenors-Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
ORDERBefore: CLAY, MCKEAGUE, and DONALD, Circuit Judges.
Defendant-Intervenors, the Michigan Republican Party and Michigan Attorney General Bill Schuette ("Defendants"), appeal the temporary restraining order issued by the district court on December 5, 2016, requiring Michigan election officials to commence recounting the presidential votes cast in the recent presidential election two days earlier than would have been provided for under Michigan law. For the following reasons, we AFFIRM the district court's temporary restraining order.1
On November 8, 2016, the nation conducted a general election to determine, among other offices, the forty-fifth President of the United States. Republican Party presidential candidate Donald J. Trump ("Trump") was declared the winner in the State of Michigan by 10,704 votes.
On November 30, 2016, Green Party presidential candidate Jill Stein ("Stein") petitioned the State of Michigan for a recount of its presidential ballots. Trump subsequently objected to the recount, arguing among other things that the recount was invalid under Michigan law. On December 2, 2016, the Michigan State Board of Canvassers deadlocked as to Trump's objections. Pursuant to Michigan law, Trump's objections therefore were automatically rejected. See Mich. Comp. Laws § 168.22d(2). Michigan law provides that after the State Board of Canvassers resolves objections to a recount, the recount cannot begin until two business days have passed ("waiting period law"). See id. § 168.882(3). Because December 2, 2016 was a Friday, the recount therefore could not begin until Wednesday, December 7, 2016, two business days and four days total after the Board of Canvassers' decision.
Federal law requires that all disputes over a state's delegation to the Electoral College be resolved by December 13, 2016. See 3 U.S.C. § 5. On December 2, 2016, Stein and Michigan voter Louis Novak filed the instant federal lawsuit against Michigan election officials in the Eastern District of Michigan asserting that Michigan's waiting period law would make it impossible for the recount to be completed by the federal deadline. Plaintiffs asserted various First and Fourteenth Amendment claims under 42 U.S.C. § 1983 all seeking the same relief—anorder requiring the recount to begin immediately without observing the waiting period law. Stein also filed an application for a temporary restraining order seeking the same relief. On December 5, 2016, the district court granted the restraining order and required the recount to begin at noon the same day. Defendants filed a notice of appeal in this Court challenging the restraining order, and have moved us for a stay of the district court's order.
While these federal proceedings were going on, Trump filed applications before the Michigan Court of Appeals and the Michigan Supreme Court attacking the recount on substantive grounds under Michigan law. The parties filed briefing before the Michigan Court of Appeals on December 5, 2016, and that court will hear arguments on the matter on December 6, 2016.
At the outset, we are obliged to determine whether Article III standing exists to adjudicate this matter. We note that this is a separate question from whether a Stein had the right to initiate the recount in the first place, an issue of Michigan state law that is not before us, and will in any event be determined by the Michigan courts. In order to establish Article III standing, a party must demonstrate: (i) that she has suffered an injury in fact that is (ii) fairly traceable to the conduct being challenged, and (iii) the injury will likely be redressed by a favorable decision from the federal court. See, e.g., Wittman v. Personhuballah, 136 S. Ct. 1732, 1736 (2016).
We hold that Stein and Novak have demonstrated Article III standing to bring this lawsuit. Michigan law provides for election recounts under certain circumstances. See Mich. Comp. Laws §§ 168.880 et seq. Stein and Novak have invoked the recount right created by Michigan law, and although the Michigan state courts may eventually decide otherwise, to date, no court has held that Stein and Novak's recount petition was invalid. Accordingly, Plaintiffs' allegations that the waiting period law will make it functionally impossible to exercise their state law recount right alleges an injury in fact sufficient to satisfy Article III. This injury is fairly traceable to the waiting period law, which as the district court noted, would have eliminated roughly one-third of the time available for the recount.
Moreover, Plaintiffs' injury was redressable by a favorable order from the district court. Indeed, by obtaining the temporary restraining order Plaintiffs sought, the recount was initiated in sufficient time to be completed by the December 13, 2016 federal deadline. Accordingly, Plaintiffs are properly before our Court.
Plaintiffs assert that we lack jurisdiction over this appeal because a temporary restraining order is not a reviewable interlocutory order. We disagree.
Generally, temporary restraining orders are not immediately appealable. See Office of Pers. Mgmt. v. Am. Fed'n of Gov't Employees, AFL-CIO, 473 U.S. 1301, 1303-05 (1985). We have acknowledged exceptions to this rule that permit appeal whenever irreparable harm will occur before the order expires, or the order requires "affirmative action" rather than simply preserving the status quo. Ne. Ohio Coalition for Homeless & Serv. Emps. Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005-06 (6th Cir. 2006).
Here, the district court's temporary restraining order required affirmative action—it ordered Michigan officials to begin the recount two days before the time provided under Michigan law. We therefore hold that the district court's order was an appealable interlocutory order.
We review a district court's decision to grant a temporary restraining order for abuse of discretion. Id. at 1009. "To determine whether a TRO should be stayed," we consider the same factors used to determine whether the TRO should be issued in the first place, including: "(1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay." Id. "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). "For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay." Blackwell, 467 F.3d at 1009.
We hold that the district court did not abuse its discretion in granting the temporary restraining order at issue here. Plaintiffs have made a compelling showing that they will be irreparably harmed in the absence of the temporary restraining order. Defendant Thomas admitted before the district court that it would have been extremely difficult and unlikely—a "monumental undertaking"—for the State to have completed the recount before the December 13, 2016 federal deadline if it had observed the waiting period law. If the recount could not be completed by the federal deadline, the right to a recount provided under Michigan law would have been effectively worthless. Facing the potential that Plaintiffs' state recount right may have been deprived entirely by the waiting period law, we cannot say that the district court abused its discretion in determining that Plaintiffs would suffer irreparable harm without a TRO.
Because Plaintiffs made an extremely strong showing of irreparable harm, they were not required to make as a strong a showing of a likelihood of success on the merits. Blackwell, 467 F.3d at 1009. Plaintiffs met this lowered bar. As the district court recognized, once a state legislature vests its citizens with election rights, those rights are fundamental and are protectable by the First and Fourteenth Amendments. See, e.g., Bush v. Gore, 531 U.S. 98, 104 (2000) (non-precedential); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir. 2008). Plaintiffs made a sufficient showing that the State of Michigan granted them a right to a recount; once that premise is established, we think it clear that the State could not use arbitrary or unreasonable procedural rules to make that right a nullity.
When evaluating whether state election procedures violate First and Fourteenth Amendment election rights, we use the framework set out by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under the Anderson/Burdick framework, we weigh the burden to a plaintiff's First and Fourteenth Amendment rights against the interests put forward by the State as justifications for its election procedures. Burdick, 504 U.S. at 434. Our inquiry is rigorous when the burden on a plaintiff's rights is severe, and more relaxed when the burden is slight or minimal. Id.
Here, as explained earlier, Plaintiffs would have essentially lost their...
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