DEFENDANT RUTH JOHNSON’S RESPONSE IN OPPOSITION TO ... · Over 1.2 million voters cast ballots at the February 28, 2012 Presidential Primary, yet the Bureau of Elections did not

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL BRYANTON, GLENN REHAHN, CHERYL MERRILL, RICHARD L. ROBINSON, SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 517M, SEIU MICHIGAN STATE COUNCIL, LATIN AMERICANS FOR SOCIAL AND ECONOMIC DEVELOPMENT (Lansing, Michigan 48909 SED), AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiffs, v RUTH JOHNSON, in her official capacity as Michigan Secretary of State, Defendant.

No. 2:12-cv-14114 HON. PAUL D. BORMAN MAG. PAUL J. KOMIVES

Andrew A. Nickelhoff (P37990) Mary Ellen Gurewitz (P25724) Attorneys for Plaintiffs 1000 Farmer Street Detroit, Michigan 48226 313.496.9429

Maryann Parker Attorney for SEIU Locial 517M & SEIU Michigan State Council 1800 Massachusetts Ave NW Washington, DC 20036 202.730.7734 [email protected]

Ann M. Sherman (P67762) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.373.6434 /

Daniel S. Korobkin (P72842) Attorney for Plaintiffs 2966 Woodward Avenue Detroit, Michigan 48201 313.578.6824 [email protected]

DEFENDANT RUTH JOHNSON’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

2:12-cv-14114-PDB-PJK Doc # 12 Filed 09/25/12 Pg 1 of 38 Pg ID 593

i

CONCISE STATEMENT OF ISSUES PRESENTED

1. Have Plaintiffs have met the grounds for the extraordinary relief of a preliminary injunction?


ii

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Cases

Bd. of Educ. v. Porter, 392 Mich. 613; 221 N.W.2d 345 (1974) .................................................. 23

Gonzalez v. Nat’l Bd. of Med. Exam’rs, 225F.3d 620 (6th Cir. 2000) ......................................... 14

Kay v. Austin, 621 F.2d 809 (6th Cir. 1980) ................................................................................... 6

Nader v. Blackwell, 230 F.3d 833 (6th Cir. 2000) ........................................................................ 16

Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006) ............. 18

Overstreet v. Lexington-Layette Urban County Gov’t, 305 F.3d 566 (6th Cir. 2002) .............. 8, 13

Patio Enclosures, Inc. v. Herbst, 39 F. App’x 964 (6th Cir. 2002) ................................................ 8

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ............................................... 19

Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................................. 15, 32


1

INTRODUCTION

Plaintiffs’ request for an expedited preliminary injunction is based on alleged past harm

that is not only exaggerated but also appears to be the result of an “organized effort” to challenge

Michigan’s use of a citizenship question in the upcoming November 6, 2012 general election. It

is also based on a predicted “parade of horribles”—all of which are speculative and exaggerated

and many of which have been created by Plaintiffs in failing to bring this case earlier. Plaintiffs’

Chicken Little predictions are not virtually certain to occur if the citizenship question is used in

November. In reality, implementation has gone relatively smoothly in the past three elections

and is likely to do so again in November. Plaintiffs’ extraordinary request should be denied for

five reasons:

• First, there is no support for claims of voter disenfranchisement in the upcoming election.

Plaintiffs have not demonstrated that even one individual has been denied the right to

vote as a result of the citizenship checkbox. Nor have they produced anyone who was

chilled from either going to the polls or returning an absent voter ballot application.

• Second, Accounts of “total confusion” in the August primary and predictions of even

greater confusion and delay resulting from the use of the question in November are

highly exaggerated. The checkbox was used without reported incident in Michigan

elections dating back as far as 2002, and in two of the three most recent Michigan

elections—the February 2012 and September 2012 elections—and was implemented with

very few incidents in over 4,900 precincts during the August , 2012 primary. Plaintiffs’

pleadings include no more than 16 named voters who were unhappy with the

requirement, even though they did vote. The Secretary’s ongoing instructions to clerks


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and the upcoming clerk training will ensure continued uniformity of implementation,

presuming local clerks perform their duties.

• Third, injunctive relief is unnecessary with respect to the Voting Rights Act (VRA)

claim. The Secretary has already sought preclearance for the two townships covered by

the VRA. In addition, she has clearly stated that in the unlikely event preclearance is not

granted, the citizenship question will not be used at the polls in the two covered

jurisdictions, and is willing to stipulate to that. Thus, the claim is moot or not ripe.

• Fourth, the Secretary has Eleventh Amendment immunity on the state law claim

challenging her authority.

• And fifth, while Plaintiffs ask this Court to act with dispatch, they themselves have not

done so, preferring instead to wait almost 7 months and then create an “emergency” for

Michigan voters, the Secretary of State and Bureau of Elections, and this Court.

Plaintiffs have not met the grounds for this extraordinary relief. This Court should deny

their request for both preliminary injunction and expeditious review.


3

STATEMENT OF FACTS

The timing of this action

Plaintiffs have framed their request for preliminary injunction to prohibit the Secretary of

State from using a citizenship question on applications to vote for the November general

election against the backdrop of the time-sensitive election process. Indeed, Plaintiffs have

impressed upon this Court that election is “less than seven weeks away, and the extensive,

expensive and time-consuming preparations for the election by county and local clerks are well

under way.” (R. 4, Pls.’ Mot. for Prelim. Inj. at 2.) Plaintiffs are aware of the use of the

citizenship question in three prior elections—February 2012, August 2012 and September

2012—and its anticipated use in the November 2012 general election. Yet they waited nearly 7

months to ask for the extraordinary relief of preliminary injunction and expedited consideration

of their request.

Michigan’s decentralized system, the Secretary’s authority, and responsibilities of local clerks

Michigan is one of only 8 states that has a decentralized system for administering

elections. Local jurisdictions are responsible for transmitting, receiving, and counting ballots.

With 1,517 local jurisdictions and local clerks, Michigan has the largest decentralized system by

geography and population.1

The Michigan Secretary of State is Michigan’s chief elections officer. Mich. Comp.

Laws § 168.21. Under state law, the Secretary—currently, Ruth Johnson—is charged with

issuing instructions and prescribing forms for the conduct of elections, and directing election

officials as to the proper methods of conducting elections. Mich. Comp. Laws § 168.31. Under

state law, the Director of Elections—currently Christopher Thomas—is vested with the powers

1 http://www.michigan.gov/documents/sos/I_Structure_of_MIElections_System_265982_7.pdf


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and must perform the duties of the Secretary of State concerning the supervision and

administration of the election laws. Mich. Comp. Laws § 168.32. He performs these duties

under the supervision of the Secretary of State. Mich. Comp. Laws § 168.32(1). While the

Legislature has vested local election officials with the duty to perform, the Secretary retains

enforcement authority over them. Mich. Comp. Laws § 168.31; 168.931(h). At the ground

level, elections are administered by more than 30,000 elections inspectors at approximately

4,900 precincts statewide. These elections inspectors are trained and supervised by the local

clerk.

Prior use of the citizenship question

Michigan Election Law authorizes the Secretary to, “[p]rescribe and require uniform

forms, notices, and supplies the Secretary of State considers advisable for use in the conduct of

elections and registrations.” Mich. Comp. Laws § 168.31(1)(e). Election law also addresses the

content of the applications, setting forth a nonexclusive list of information that must appear on

the in-person application to vote, (Mich. Comp. Laws § 168.523), while providing in greater

detail the content of the absent voter ballot application and mandating substantial compliance

with the suggested form. (Mich. Comp. Laws §168.759).

The citizenship question was used in the Application to Vote – Poll List as a voter

educational tool in 2002. (Attach. 1, Thomas Aff., ¶ 5, fn 1). Recent legislation2 required the

Secretary to prescribe a new Application to Vote – Poll List and Absent Voter Ballot Application

because all voters who participated in Michigan’s 2012 Presidential Primary were required to

indicate in writing which political party’s ballot the voter selected. (Attach. 1, Christopher

Thomas aff., ¶¶ 7-8, citing Mich. Comp. Laws 168.615c(1).) Under Michigan law, the Secretary

2 The legislation is 2011 PA 163. The Secretary obtained preclearance of that presidential primary law. (Attach. 1, Thomas aff., ¶ 7 and Ex. 2.)


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may either revise the absent voter ballot application form described in § 759 so an elector can

indicate which political party ballot he or she wishes to vote or provide a separate form for that

purpose. (Attach. 2, Melissa Malerman aff., ¶7, citing Mich. Comp. Laws 168.759c.) The

Secretary prescribed a Application to Vote – Poll List and Absent Voter Ballot Application for

the February 28, 2012 Presidential Primary. These applications adding the following question:

“Are you a United States citizen? Yes [ ] No [ ].”3 (Attach.1, Thomas aff., ¶ ¶ 8-9 & Exs. 3, 4.)

The Secretary instructed clerks to add the citizenship question to the Application to Vote – Poll

List and Absent Voter Ballot Application but allowed them to exhaust their existing stock of the

forms until the November 6, 2012 general election. (Id. at ¶ 9 & Ex. 4.)

Before the February 2012 election, local clerks were given instructions for handling

situations where applications were submitted with an improper response to the new “Are You a

United States Citizen” question. (Attach. 1, Thomas aff.,¶ 9.) For absentee ballot applications,

inspectors were instructed to issue a ballot. (Id., ¶ 10a & Ex. 5.) For applications to vote at the

polls, inspectors were instructed to ask the voter to respond, and if the voter refused, to swear in

the voter under the standard process for challenging a voter’s qualifications. (Id. at ¶ 10b, citing

Mich. Comp. Laws 168.727).) Clerks were instructed to issue a ballot to such voters unless the

voter persisted in his or her refusal to answer or answered in the negative. (Id. at ¶ 10b & Ex. 5.)

Where absent voters or voters in the polling places answered “No,” clerks were instructed not to

issue a ballot and to follow up with a written notice to the voter. (Id. at ¶ 10c & Ex. 5.) the

local clerk that follow-up was necessary.

3 The citizenship question was actually added to the Application to Vote – Poll List as a voter educational tool in 2002. Jurisdictions were given the option of using applications containing the citizenship question, so covered jurisdictions would have been required to make their own preclearance submissions. (Attach. 1, Thomas aff., ¶ 5, fn1.)


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Over 1.2 million voters cast ballots at the February 28, 2012 Presidential Primary, yet the

Bureau of Elections did not receive any complaints regarding the citizenship verification

question. (Id. at ¶ 11.) Among the over 1.2 million voters were two of the three named

individual Plaintiffs here, Cheryl Merrill and Richard L. Robinson (Glenn Rehahan did not vote

in the February Presidential Primary) and 8 of the eleven individuals who submitted declarations

in support of Plaintiffs’ action: Will Tyler White, Robert Anderson, Ryan Irvin, Leroy Pletten,

Blair Kay Simmons, Alex Citron, Ron French, and Michael Edwin. (Attach. 2, Malerman aff.,

¶¶ 9-13.) Each answered “Yes” to the citizenship question on their Application to Vote/Ballot

Selection Form or Absent Voter Ballot Application. (Id. at ¶¶ 10, 14.)

Subsequently, in June of 2012, the Michigan Legislature passed a bill that would have

amended both § 523 and § 759 by adding the following to the application to vote: “An

affirmative statement by the elector indicating that he or she is a citizen of the United States.”

(Attach. 3, Preclearance Submission exhibit, Michigan Senate Bill 803.) The Governor vetoed

Senate Bill 803 on July 3, 2012, specifically expressing his concern that the legislation, “could

create confusion among absentee voters.” (Attach. 1, Thomas aff., ¶ 12 & Ex. 6, Senate Journal

No. 61, July 18, 2012, emphasis added.) The Governor’s concern did not extend to the question

being placed on the application to vote used on election day in the polling place, where the voter

is present and has the opportunity to interact with the election inspector. Rather, he was

concerned with the absentee ballot application process, since the voter is not present and any

interaction necessarily occurs through the mail.


7

After the gubernatorial veto, the Secretary continued to use the checkbox in the August 7,

2012 primary election and the September 5, 2012 special primary election4. Prior to the August

7 primary, on August 6, the Secretary reminded clerks to follow the instructions given on

January 20, 2012 for the August 7 primary. (Id. at ¶ 13 & Ex. 7.) On the morning of the August

primary the Bureau of Elections responded to some reports of voter discontent with the

citizenship verification question streamlining the procedure by revising instructions with respect

to voters in the polling place who did not respond to the citizenship question. (Id. at ¶ 14 & Ex.

8.) Instead of swearing in the voter under the challenge process, clerks were instructed to read

the following statement: “Under the Michigan Constitution and election laws you must be a

citizen of the United States in order to vote,” and then issue a ballot to the voter. (Id. at 14 &

Ex. 8, News You Can Use,” Issue, 2012-52, August 7, 2012.) This amended instruction remained

in place during the September 5 election, along with the prior instruction to issue a ballot to

absent voters even if they neglected or refused to answer the citizenship question. Under the

August 7, 2012 instructions, the voter is under no obligation to answer the citizenship question.

Reading the statement to the nonresponsive voter provides a noncitizen a final opportunity to

refrain from casting an illegal vote. (Id. at ¶15.)

“18. Over 36,000 voters cast ballots at the September 5, 2012 Special Primary in the 11th

Congressional District, yet the Bureau of Elections did not receive any complaints regarding the

citizenship verification question.” (Attach. 1, Thomas Aff., ¶ 18.)

“16. Further, the citizenship question is important because under the National Voter

Registration Act of 1993 (NVRA), the Secretary of State’s driver’s license application also

serves as a voter registration application. 42 USC 1973gg-3(a)(1). Until the enactment of Public

4 A special election was conducted on September 5 to fill the vacancy created by U.S. Representative Thaddeus McCotter’s resignation.


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Act 7 of 2008, Secretary of State branch office employees did not inquire as to the citizenship

status of individuals applying for a driver’s license, and consistent with the NVRA, offered every

driver’s license applicant the opportunity to register to vote. Thus under the prior system,

noncitizens inadvertently became registered to vote. Currently for new driver’s license

transactions where the applicant demonstrates legal presence with documents showing that he or

she is not a citizen of the United States, no voter registration opportunity is offered. At the

beginning of all other driver’s license application transactions, Secretary of State branch office

employees inform every applicant that in order to vote a person must be a citizen of the United

States. (Implementation of the citizenship question on the Application to Vote – Poll List and

Absent Voter Ballot Application forms is intended to put noncitizens on notice that they are

ineligible to vote.” (Attach. 1, Thomas aff., ¶ 16).

Use of the citizenship question in the November 6 general election

The Secretary has instructed the clerks to use the citizenship question on in-person

applications to vote utilized at the November 6, 2012 Federal general election. The instruction

required uniformity throughout the State since the Secretary also specifically instructed local

clerks not to use any existing stock of applications to vote that do not include the citizenship

question. (Id. at ¶ 9.) The Director of Elections has scheduled training sessions for county, city,

and township clerks beginning the week of October 1, 2012. (Id. at ¶ 7 & Ex. 9, “News You Can

Use,: Sept. 27, 2012.) One of the training topics is to train clerks so they may direct their

jurisdiction’s precinct election inspectors on the proper use of the Application to Vote – Poll

Lists. (Id. at ¶ 17.) Michigan Election Law requires election inspectors to be trained “within 20

days prior to a general election.” (Id. citing Mich. Comp. Laws, ¶ 168.683.) The training period

begins on October 17, 2012. (Id.)


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“20. On September 25, 2012, supplemental instructions were issued to clerks regarding

the citizenship question. These supplemental instructions remind clerks to do the following: a.

For voters who appear in the polling place on Election Day and refuse or neglect to answer the

citizenship question, “read this statement: ‘Under the Michigan Constitution and election laws

you must be a citizen of the United States in order to vote.’ Then issue a ballot to the voter.” b.

For absentee voters who did not respond to the citizenship verification question on the Absent

Voter Ballot Application, issue a ballot regardless of the voter’s failure to answer. Clerks are not

required to pursue an answer to the citizenship question from the voter.”

ARGUMENT

I. Plaintiffs have not met their burden of demonstrating entitlement to the extraordinary relief of a preliminary injunction.

Plaintiffs must carry a heavy burden to demonstrate entitlement to a preliminary

injunction. Injunctive relief is “an extraordinary remedy that should be granted only if the

movant carries his or her burden of proving that the circumstances clearly demand it.”

Overstreet v. Lexington-Layette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). The

decision whether to issue a preliminary injunction is within the discretion of this Court and is

reviewed for abuse of that discretion. Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 262 (6th Cir.

1988). In determining whether to grant a preliminary injunction, a court considers the following

four factors: (1) whether the plaintiff is likely to succeed on the merits; (2) whether the plaintiff

is likely to suffer irreparable injury absent an injunction; (3) whether the balance of equities tips

in the plaintiff’s favor; and, (4) whether the public interest would be served by granting the

injunction. Winter v. Natural Res. Def.Council, 555 U.S. 7, 20 (2008). Applying this well-


10

established inquiry, Plaintiffs have not met their burden of demonstrating their entitlement to this

extraordinary relief.

A. Plaintiffs have not shown a threat of imminent or irreparable harm.

The hallmark of injunctive relief is a likelihood of irreparable harm. Patio Enclosures,

Inc. v. Herbst, 39 F. App’x 964, 967 (6th Cir. 2002) (“[T]he demonstration of some irreparable

injury is a sine qua non for issuance of an injunction.”); see also Winter, 555 U.S. at 22

(rejecting the notion that a mere “possibility” of irreparable injury was sufficient for a

preliminary injunction and holding that “plaintiffs seeking preliminary relief [are required] to

demonstrate that irreparable injury is likely in the absence of an injunction”).

A citizenship question should come as no surprise to voters. Most know that citizenship

is a constitutional prerequisite to voting. 18 U.S.C. 611; 18 U.S.C. 911; 18 U.S.C. 1015(f). See

also Mich. Comp. Laws ¶ 168.492 (A qualified elector “shall be a citizen of the United States. . .

. “) For those who do not, the citizenship question provides valuable information that might

prevent them from inadvertently committing a crime—one that also dilutes votes of legitimate

voters. It is hard to imagine how answering a question concerning one’s citizenship is a burden

on voting rights. Any minimal burdens associated with the question pass constitutional muster.

1. No voter disenfranchisement

Significantly, Plaintiffs have not shown that the citizenship question has caused or will

cause even one person to be denied the right to vote. The Secretary has instructed and will

continue to reiterate to local clerks her instruction that no individual is to be denied a ballot for

failure or refusal to answer the citizenship question. (Attach. 1, Thomas Aff., ¶¶ 14-15 & Ex. 8;

¶¶ 10a, 16, 17 a & b.) Since all voters will be given ballots (unless, of course, they attest to


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being a noncitizen, Id. at ¶ 10c), even inconsistencies in the application will not affect the

franchise.

Over 1.2 million voters cast ballots at the February 28, 2012 Presidential Primary, yet the

Bureau of Elections did not receive any complaints regarding the citizenship verification

question. (Id. at ¶ 11.) Although a small number of voters who refused to answer the citizenship

question were initially denied ballots during the August 2012 primary based on an earlier

instruction to the clerks by the Secretary of State (Id. at ¶ 10b), those individuals ultimately did

cast a vote after the Secretary issued an amended instruction not to deny anyone a ballot. (Id. at ¶

14 & Ex. 8.)

Among the over 1.2 million voters who voted without incident were two of the three

named individual Plaintiffs here, Cheryl Merrill and Richard L. Robinson (Glenn Rehahn did not

vote in the February Presidential Primary) and 8 of the eleven individuals who submitted

declarations in support of Plaintiffs’ action: Will Tyler White, Robert Anderson, Ryan Irvin,

Leroy Pletten, Blair Kay Simmons, Alex Citron, Ron French, and Michael Edwin. (Attach. 2,

Malerman aff., ¶¶ 9-13.) Remarkably, each managed to answer “Yes” to the citizenship question

on their Application to Vote/Ballot Selection Form or Absent Voter Ballot Application. (Id. at

¶¶ 10, 14.). According to Plaintiffs’ supplemental memorandum, at least one clerk has stated

that the challenges to the citizenship question and other procedures “appeared to be an organized

effort to challenge the procedures.” (R. 9, Pls.’ Supp. Mem. at 5, emphasis added.) Plaintiffs

also have not produced even one declaration from a voter who decided not to go to the polls, or

did not return an absent voter ballot application, out of fear and confusion over the citizenship

question. “Over 36,000 voters cast ballots at the September 5, 2012 Special Primary in the 11th


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Congressional District, yet the Bureau of Elections did not receive any complaints regarding the

citizenship verification question.” (Attach. 1, Thomas Aff., ¶ 18).

The citizenship question is simple and straightforward: Are you a United States Citizen?

Despite these realities, Plaintiffs remain undaunted in their predictions that the citizenship

question will “cause some people to be deprived of their right to vote altogether . . . .” (R. 4, Pls.

Brief in Support of Mot. for Prelim. Inj. at 5.)

2. No likelihood of mass confusion in implementation during November election

Plaintiffs also claim that “inconsistent application of the requirement is certain to occur”

and will create equal protection violations (Id.) The Secretary has already issued clear

instructions regarding the use of the citizenship question during the upcoming election. With

1,517 local jurisdictions, about 4,900 voting precincts, and more than 30,000 election inspectors

statewide, there is always the potential for the minor inconsistencies in the application of any

voting procedure. But the Secretary has taken or will be taking the following steps to ensure the

most consistent application possible in Michigan’s large, decentralized system:

• Clearly “advis[ing] and direct[ing] local election officials”—that is, all local clerks—to use the citizenship question at the polls and not to deny anyone a ballot for refusal to answer the question. (Attach. 1, Thomas aff., ¶¶ 10a, 14, 156, 17, 20 a & b and Ex. 10.)

• Instructing her clerks not to use old stock applications to vote that do not include the citizenship question. (Id. at ¶¶ 9, 17 & Ex. 4.)

• Training clerks as to how to train their election inspectors on uniformly implementing the citizenship question during clerks’ training session beginning October 1, 2012. (Id. at ¶ 22.)

Predictions that Michigan local clerks might not follow the Secretary’s clear directives

for the upcoming election, (R. 4, Pls.’ Brief in Support of Mot. for Prelim. Inj., at 5.), are highly


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speculative. As Plaintiffs readily admit, it is the local clerks who are “required to provide

training to elections inspectors, the thousands of people who actually work in the polling places.”

(Id. at 3, emphasis added.) They are expected to do so consistent with the Secretary’s directives.

With respect to alleged voter confusion regarding the impact of the Governor’s veto on

the citizenship question or the apparent redundancy of the citizenship question for those who are

confident they already attested to their citizenship when registering to vote, there has already

been significant media coverage of both sides of the citizenship question issue. (Attach. 4,

Detroit News newsclip.) Thus, informed citizens will expect the question in November. And

even those who are less informed should not be surprised at having to confirm they are a citizen

of the United States. Every element of the Application to Vote is designed to verify that the

voter has met the constitutional prerequisites to voting: date of birth (to ensure the voter is over

18 years old); address (to ensure that the voter is registered in the precinct); and now, citizenship

(to ensure that the voter is indeed a United States citizen). But to further address the validity of

and need for the question, the Secretary plans to:

• Use her website to (1) advise voters that the citizenship question will be used on applications to vote at the polls during the November 6 general election and (2) explain that no one will be denied a ballot for failing to answer the citizenship question; (Attach. 1, Thomas Aff., ¶ 23).

• Place a question on the FAQ portion of her website, explaining why the question

is necessary to protect those non-citizens who might inadvertently commit the crime of voting; and to prevent vote dilution of those legally qualified to vote. (Id.)

• Issue a press release advising voters that the question will appear on applications to vote at the polls and explaining the Secretary’s independent authority to implement the citizenship question notwithstanding the recent gubernatorial veto of legislation implementing the procedure. (Id.)

Plaintiffs predict long lines and delays in November. But as they readily admit, such

inconveniences are already expected because of anticipated higher voter turnout in the general


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election and the “extraordinarily long ballot.” (R. 4, Pls.’ Br. in Support Mot. for Preliml In., at

1.) Thus, any delay cannot reasonably be attributed to the citizenship question. Moreover,

implementation of the streamlined procedure for those who refuse to answer the question should

go quickly if clerks follow the Secretary’s directives and properly train elections inspectors not

to improperly withhold ballot access. (Attach. 1, Thomas Aff., ¶ 20 a & b and Ex. 10.) At this

point, given the media attention and past inclusion of the question, delays are just as likely occur

if the citizenship question is not on the application to vote. Based on communications supporting

the citizenship questions, patriotic voters are likely to question whether their vote is being diluted

because not asking the question may allow voting by non-citizens.

3. Injunction is not necessary to remedy any Voting Rights Act violation.

Plaintiffs ask this Court to issue an order directing that the citizenship question not be

used on applications to vote and on applications for an absent voter ballot in Michigan’s two

Voting Rights Act townships: Clyde Township in Allegan County and Buena Vista Township in

Saginaw County. (R.4, Pls.’ Brief in Support of Mot. for Prelim. Inj. at 11.) Such relief is

unnecessary. The Secretary submitted a request for preclearance to the Department of Justice on

September 17, 2012. (Attach. 3, Preclearance app.; Attach. 1, Thomas Aff., ¶ 19.) And she has

clearly stated that the citizenship question on the in-person application to vote in these two

townships will not be required until preclearance is granted, and is willing to stipulate to this.

Given the Secretary’s affirmative actions, Plaintiffs have not carried their burden of proving that

the circumstances demand an injunction on this issue. See Overstreet, 304 F.3d at 573

(preliminary injunction is to be granted only if the moving party carries its burden of establishing

a likelihood of irreparable harm on this issue).


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As to any absent voter applications to vote that were mailed in these two covered

jurisdictions and that included the question, Plaintiffs’ delay in bringing this action has prevented

meaningful relief and correction of any equal protection problem. Plaintiffs knew 7 months ago

that the question was being used on both absent voter and in-person applications in those two

covered jurisdictions. Plaintiff Bryanton knew of the question 8 months ago—in October of

2011—when he received instructions for the February presidential primary. Had Plaintiffs

timely filed, there would have been ample time for the Secretary to work with the Department of

Justice on preclearance5 and to allow for timely ballot-application printing and training for the

November general election. However, the Secretary’s instructions on the absent voter

application effectively renders the question meaningless, since it has not been enforced.

4. Any inconsistencies with absent voter applications to vote could have been prevented with timely filing

Plaintiffs allege that equal protection violations will result from unequal treatment of

absentee ballot applicants. (Id. at 8.) As Plaintiffs point out (id.), the online Absent Voter Ballot

application available at the Secretary of State’s website does not include the citizenship question.

(R 1, Compl., Ex. 9.) Nor is it contained in the application that clerks can generate from the

Secretary of State’s qualified voter file. (R.4, Br. in Support Mot. for Prelim. Inj., at 8.) Finally,

the Secretary has instructed clerks not to continue to use the question on absent voter ballot

applications. As to absent voter applications that had the citizenship question included, Plaintiffs’

expeditious pressing of their case could have prevented this purported equal protection violation

since absent voter applications could not be turned prior to 75 days before the election. Notably,

Plaintiffs allege an equal protection violation but the relief sought—that of not including the 5 A request for preclearance was submitted to the Department of Justice on September 17, 2012. (Attach. 3, preclearance app.)


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citizenship question—would in fact treat federal overseas and military voters differently, as

federal absentee ballot forms required a citizenship question as well as an attestation of

citizenship. All voters assert that they are citizens when they sign the application acknowledging

that they are “registered and qualified.”

In any event, absent voters and in-person voters have and will be continue to be treated

alike in that all will be given ballots. Again, Plaintiffs have not produced even one absent voter

who did not return the application because of the citizenship question.

In sum, Plaintiffs have not demonstrated the imminent threat of irreparable harm.

II. Plaintiffs do not have a substantial likelihood of success on the merits.

“[A] finding that there is simply no likelihood of success on the merits is usually fatal” to

the granting of injunctive relief. Gonzalez v. Nat’l Bd. of Med. Exam’rs, 225F.3d 620, 625 (6th

Cir. 2000). Plaintiffs have not demonstrated that they are substantially likely to succeed on the

merits. Their self-made election emergency is barred by laches; they lack standing; the Secretary

has Eleventh Amendment immunity on the state law claim and otherwise has authority to use the

question on in-person applications to vote; the use of the question will not violate equal

protection guarantees; and the Voting Rights Act claim is moot or not ripe.

A. Plaintiffs’ claims are barred by laches.

The November election is looming and Plaintiffs have waited too long to bring their

claims. Their 7-month delay is inexcusable and the potential harm caused as a result is too

prejudicial to the election process. The defense of laches is rooted in the principle that “equity

aids the vigilant, not those who slumber on their rights.” Lucking v. Schram, 117 F.2d 160, 162

(6th Cir. 1941). An action may be barred by the equitable defense of laches if: (1) the plaintiff

delayed unreasonably in asserting her rights; and, (2) the defendant is prejudiced by this delay.


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Brown-Graves Co. v. Central States, Southeast and Southwest Areas Pension Fund, 206 F.3d

680, 684 (6th Cir. 2000).

The United States Supreme Court has repeatedly cautioned courts regarding last-minute

injunctive relief in such cases. See, e.g., Purcell v Gonzalez, 549 U.S. 1, 4-5 (2006) (“Court

orders affecting elections . . . can themselves result in voter confusion and consequent incentive

to remain away from the polls. As an election draws closer, that risk will increase.”); William v.

Rhodes, 393 U.S. 23, 34-35 (1968) (affirming denial of request for injunction requiring last-

minute changes to ballots, given risk of disrupting election process); Reynolds v. Sims, 377 U.S.

533, 585 (1964) (“court can reasonably endeavor to avoid a disruption of the election process

which might result from requiring precipitate changes”). The Sixth Circuit, too, has applied

laches in the time-sensitive elections context—as recently as this month. See Gelineau v.

Johnson, No. 12-2184 (6th Cir., issued September 9, 2012) (Order) (applying laches and denying

an emergency injunction because plaintiffs failed to exercise proper diligence and injunctive

relief would disrupt the Michigan electoral process); see also Kay v. Austin, 621 F.2d 809 (6th

Cir. 1980) (applying laches to a 3 ½ week delay by a candidate who knew of his injury but failed

to expeditiously “press his case”); Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000) (“The

plaintiffs could have pursued their cause more rigorously by filing suit at an earlier date. A

state’s interest in proceeding with an election increases as time passes, decisions are made, and

money is spent.”)

Likewise, both this Court and the Western District of Michigan have recently recognized

the perils of unreasonable delay in election cases. See Libertarian Party of Michigan v. Ruth

Johnson, 2:12-cv-12782 (E.D. Mich. Sept. 11, 2012) (Order) (deciding to reach the merits of an

election issue regarding whether the plaintiff would be allowed to run as a candidate for the


18

Libertarian Party but noting that the plaintiffs “vexatiously” delayed in apprising the Court of the

urgency of their motion and their “failure to act with any sense of urgency in this matter . . . is

reprehensible.”); McNeilly v. Land, No. 1:10-cv-612 (W.D. Mich., filed July 22, 2010) (applying

the doctrine of laches and refusing to accommodate plaintiff’s “self-made election emergency”).

The citizenship question has been used in Michigan by local jurisdictions dating back to

2002. As early as the February 2012 election, Plaintiffs knew the citizenship question was being

implemented. Moreover, Plaintiff-Clerk Michael Bryanton actually knew about the citizenship

verification question as far back as October of 2011 when the first instructions were issued for

the February Presidential Primary. Plaintiffs also knew it was used again in two elections

subsequent to the Governor’s veto in July.6 Certainly, the November date for the general

election was no surprise. Given this timeline, it is inexcusable that Plaintiffs delayed nearly 7

months—until September 17, 2012—to file this action and now boldly ask this Court to act with

greater dispatch than they themselves acted.

Plaintiffs’ delay will prejudice both the Secretary of State and the election process. As

Plaintiffs point out, the elections process is already underway:

[E]xpensive and time-consuming preparations for the election by county and local clerks are well under way. Applications are being ordered and printed, materials are being prepared, precinct kits and supplies are being packaged for distribution to local clerks and precincts, and elections inspectors are being appointed and trained.

6 Plaintiffs had access to “News You Can Use” on the Secretary of State website: 2012-51 (August 6) link – http://www.michigan.gov/sos/0,4670-127-1633_11976_45674_60072_283900--.html, revised in Issue 2-12-52 (August 7) link – http://www.michigan.gov/sos/),4670,7-127-1633_11976_45674_60072-283901--,00.html.


19

(R. 4, Pls.’ Br. in Support of Mot. for Prelim. Inj. at 2; See also Attach. 1, Thomas Aff., ¶ 21).

Any injunction issued at this late date could create last-minute errors or confusion in instructing

and training clerks, training poll workers, educating the voters, and printing applications to vote.

Included in this confusion could be questions relating to why the citizenship question was

removed, leaving franchise unprotected from dilution. Such confusion would far outweigh any

confusion Plaintiffs allege.

B. Plaintiffs lack standing.

Jurisdiction, including standing, is “‘assessed under the facts existing when the complaint

is filed.’” Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n4 (1992)). In order to meet the

standing requirements derived from Article III, a plaintiff must show that (1) he or she has

“suffered an ‘injury in fact’ that is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180-81 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A

plaintiff’s likelihood of successfully showing standing is properly considered as part of the

overall analysis of the likelihood of success on the merits. USSAF v. Land, No. 2:08-cv-14019)

(citing Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1010 (6th Cir.

2006). To have standing, associations must show at least one member with standing in his or her

own right to sue. Northeast Ohio Coalition, 467 F.3d at 1010.

Here, Plaintiffs’ claims of harm as to the upcoming election are wholly speculative and

hypothetical. Additionally, Plaintiff associations have failed to specifically name even one


20

member who will imminently suffer injury. Ordinarily plaintiffs may not need to identify

specific voters who will be wronged by election workers implementing a challenged election

procedure. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cor.

2004). But there is no reason to apply that general rule with respect to absent voter ballot

applications, since many have already been sent out. See Northeast Ohio Coalition, 467 F.3d at

1010 (“[T]there is no reason to apply this reasoning to absentee ballots already submitted.”).

And overall, this omission is telling since Plaintiffs’ predictions of future harm have been

demonstrated by purported past harm. Finally, the alleged injuries cannot be redressed by the

relief sought. Because of Plaintiffs’ delay, many absent voter applications for the November

election have already been sent out with the citizenship question included. Similarly, the

question has already been used on absent voter applications in the covered jurisdictions—again,

an avoidable injury had Plaintiffs not delayed. Finally, to the extent Plaintiffs claim that local

jurisdictions are not consistent, an injunction against the Secretary will not necessarily ensure

consistent implementation among all 30,000 election inspectors in Michigan’s 4,900 precincts,

especially since the military and overseas voters will be asked the citizenship question based on

the federal government form even if Plaintiffs were to prevail.

C. The Secretary is entitled to 11th Amendment immunity on the state law claim, and in any event, she has the authority to implement the citizenship question at the polls.

Plaintiffs argue the Secretary’s actions in implementing the citizenship question were

ultra vires and ask this Court to assert supplemental jurisdiction over this state law claim. (R. 1,

Compl., ¶ 3.)

1. Eleventh Amendment immunity


21

As Plaintiffs have sued her in her official capacity, the Secretary is entitled to Eleventh

Amendment immunity on the state law claim. The Eleventh Amendment to the United States

Constitution gives immunity from suits by it in federal court to states and their officials unless

that immunity is waived. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).

"The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be

sued by private individuals in federal court." Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.

356, 363 (2001). Michigan has not consented to suit and this Court lacks jurisdiction to hear

Plaintiffs’ state law claim against the Secretary of State.

2. Even if the Secretary were not entitled to immunity, she has statutory authority to implement use of the citizenship question at the polls.

Under Michigan Election Law, specifically Mich. Comp. Laws 168.31(1)(e), the

Secretary “shall . . . “[p]rescribe and require uniform forms, notices, and supplies the secretary of

state considers advisable for use in the conduct of elections and registrations.” This provision

uses the mandatory “shall,” which is unambiguous and denotes a mandatory and imperative

directive, rather than a discretionary action. Stand Up for Democracy v. Secretary of State, 492

Mich 588; ____NW2d ____ (2012) (citing Michigan Ed. Ass'n. v. Secretary of State (On

Rehearing), 489 Mich. 194, 218; 801 N.W.2d 35 (2011)). Under this plain language, the

Secretary is not only authorized but also required to prescribe forms she considers advisable.

Accordingly, she has the authority to prescribe a form for an in-person application to vote.

Moreover, every voter who appears at the polling place on Election Day is required to complete

an application before receiving a ballot. Mich. Comp. Laws § 168.523.

Exercising that authority, the Secretary has directed local clerks to include a citizenship

question on in-person applications to vote. That directive is consistent with other provisions of


22

Michigan Election Law, notably, MCL 168.523, which pertains to in-person applications to vote.

Among other things, § 523 mandates that a registered elector seeking to vote at the polls “shall

execute an application showing his or her signature or mark and address of residence in the

presence of an application official.” In precincts where voter registration lists are used, “the date

of birth may be required to be placed on the application to vote.” Id. Read in harmony with §

31(1)(e), § 523 confirms the Secretary’s authority to prescribe the application to vote and

dictates certain information that must appear on the in-person application but does not limit the

information the Secretary may require. Section 523 should also be read in harmony with Mich.

Comp. Laws 168.492, which states, “Each person who has the following qualifications of an

elector, or who will have those qualifications at the next election or primary election, is entitled

to register as an elector in the township, city, or village in which he or she resides. The person

shall be a citizen of the United States; not less than 18 years of age; a resident of the state for not

less than 30 days; and a resident of the township, city, or village on or before the thirtieth day

before the next regular or special election or primary election.” Thus, Michigan Election Law

does not prohibit the Secretary of State from adding a citizenship attestation question on the

ballot application for in-person voting.

Like many other states, Michigan is moving toward electronic voter registration. The

citizenship question on the in-person voter application rounds out the three qualifications to

register and vote on one document. The application to Vote – Poll List, which will be retained

by local election officials for 6 years (Mich. Comp. Laws § 168.811; Public Act 271 of 2012),

will substitute for the previous hard copy paper application on which voters certified their

qualifications to vote. Michigan’s implementation of the citizenship question closely tracks the

Federal Voting Assistance Program application process, which requires individuals who apply


23

for an absent voter ballot to affirm their United States citizenship. (Attach. 3, Preclearance

submission, exhibit, screen shot of the citizenship affirmation for Federal Write-In Absentee

Ballot.)

Contrary to Plaintiffs’ assertions (R. 1, Compl., ¶¶ 71-72), the use of the question is not a

rule requiring the Secretary to follow the procedures set forth in Michigan’s Administrative

Procedures Act (APA). Under Mich. Comp. Laws § 24.226, “[a]n agency shall not adopt a

guideline in lieu of a rule.” The standard enunciated by Michigan courts in determining whether

something is an acceptable guideline rather than an impermissible rule is whether the agency is

seeking to do by guideline what it could not otherwise do by rule. Am. Fed'n of State, County &

Mun. Employees (AFSCME), AFL–CIO v. Dep't of Mental Health, 452 Mich. 1, 9-10; 550

N.W.2d 190, 193 (1996) (internal citation omitted). Here, the Secretary is not attempting to

achieve by guideline what she could not otherwise do by rule. She is acting under her already-

existing statutory authority to prescribe forms (Mich. Comp. Laws § 168.31(1)(e)) and her

general authority to issue instructions to local clerks as to use of those forms during elections

(Mich. Comp. Laws § 168.31(1)(b) & (j)). This authority to prescribe forms in entirely

independent of the APA requirement to go through the rulemaking process. Had the Legislature

intended to subject the Secretary’s power to design forms to the administrative rules process, it

would have explicitly done so as it did in Michigan Compiled Laws ¶ 31(2). (“Pursuant to the

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, the secretary of

state shall promulgate rules establishing uniform standards for state and local nominating, recall,

and ballot question petition signatures.”) Thus, she was not required to follow the procedures of

the APA in adding the citizenship question or issuing instructions as to its implementation.


24

Nor does the Governor’s July 3, 2012 veto of the citizenship question legislation, Senate

Bill 803, limit the Secretary’s authority to implement the use of the question at the polls.7 All

along the Secretary has had the authority to prescribe forms she deems advisable, irrespective of

the Governor’s veto. The Governor vetoed legislation that would have mandated the question,

but this does not undermine the Secretary’s discretionary authority to prescribe the form under

Michigan Compiled Laws § 168.311(1)(e).8 The Governor’s veto has no effect on the status quo,

which is the Secretary’s statutory authority under Mich. Comp. Laws § 168.31(e). See

Stopczynski v. Governor, 192 Mich. App. 91, 201; 285 N.W. 2d 62 (1979) (Because state agency

was funding nontherapeutic abortions prior to a bill that would have appropriated funds for such

abortions, and gubernatorial veto made the line item void, the veto had no effect on the status

quo and the agency could continue funding of nontherapeutic abortions); Bd. of Educ. v Porter,

392 Mich. 613, 619; 221 N.W.2d 345 (1974) (gubernatorial veto of proposed amendment to

provision of School Aid Act left former provision intact). Accordingly, the Secretary does not

require future legislation to add additional information to the in-person application to vote.

3. Absent voter context

The Secretary agrees that Mich. Comp. Laws § 168.759 both limits the information she

may implement on an absent voter ballot application without legislative amendment and requires

substantial compliance with the designated form. (Mich. Comp. Laws § 168.759(5)).

Notwithstanding the language of § 759, and in addition to the Eleventh Amendment argument

7 In vetoing the legislation, the Governor expressed his concern that the legislation, “could create confusion among absentee voters.” (Attach. 1, Thomas aff., ¶ 12 & Ex. 6, Senate Journal No. 61, July 18, 2012.) His concern did not extend to the question being placed on the Application to Vote used on election day in the polling place where the voter is present and may interact with the election inspector, as opposed to the limited interaction by mail. 8 Blacks Law Dictionary defines “prescribe” as “to dictate, ordain, or direct.” 8th ed. 2004).


25

already asserted, any claim based on the use of the question on absent voter applications should

be dismissed for two reasons.

First, any purported ultra vires implementation of the citizenship question on absentee

voter ballot applications has already occurred and cannot be remedied due to Plaintiffs’ delay in

filing this action.

Second, the claim is either moot or not ripe. If events occur that prevent the court from

giving meaningful relief, the case is moot and must be dismissed. Ailor v. City of Maynardville,

368 F.3d 587, 596 (6th Cir. 2004). Plaintiffs’ delay has prohibited this Court from providing

meaningful relief on this claim. Some absent voter applications for the November election have

already been sent out with the citizenship question included. It is too late for this Court to enjoin

the use of the question in the absent voter context.

In determining whether a claim is ripe, the Sixth Circuit has considered the following

factors: “(1) the likelihood that the harm alleged will ever come to pass; (2) whether the factual

record is sufficiently developed to allow for adjudication; and, (3) hardship to the parties if

judicial review is denied.” Pactiv Corp. v. Chester, 419 F. Supp. 2d 956, 964 (E.D. Mich., 2006)

(citing Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir.2002) (internal citation omitted). Going

forward, clerks have been instructed not to include the citizenship question on absent voter ballot

applications. However, there is no harm if the question was included on some absent voter ballot

applications because all clerks have consistently been instructed not to deny a ballot to any

absent voter who fails to answer the citizenship question. In addition, even if Plaintiffs were

granted the relief requested there would be absent voter ballot applications with different

requirements since the military and overseas ballots will continue to contain both a citizenship

question and a citizenship attestation clause. Again, Plaintiffs have not produced the declaration


26

of even one individual absent voter who did not return the application because of fear or

confusion over the citizenship question. In fact, one of Plaintiffs’ declarants voted absentee,

completed the citizenship question, and makes no mention of any concern in his declaration.

Thus, there is no hardship if this Court denies judicial review of this claim. This issue is not ripe

for review.

D. The use of the citizenship question at the November election will not violate equal protection guarantees.

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall

“deny to any person within its jurisdiction the equal protection of the laws,” which is essentially

a direction that all persons similarly situated should be treated alike. City of Cleburne, Tex. v

Cleburne Living Center, 473 U.S. 432, 439-440 (1985) (internal citation omitted) (emphasis

added).9 While “a citizen has a constitutionally protected right to participate in elections on an

equal basis with other citizens in the jurisdiction,” . . . “[t]his ‘equal right to vote’ is not

absolute.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see also Carrington v. Rash, 380 U.S.

89, 91 (1965) (noting that states have historically possessed “‘broad powers to determine the

conditions under which the right of suffrage may be exercised.’” (internal quotation omitted)).

Nor is Michigan obligated under the Equal Protection Clause to address at once every point at

which fraud (in this case, vote dilution) might occur. Dunn, 405 U.S. at 336 (citing United States

v. Carolene Products Co., 304 U.S. 144, 151 (1938)); see also McDonald v. Bd. of Election

Comm'rs of Chicago, 394 U.S. 802, 809 (1969) (citation omitted) (“Even in the context of voting

regulations, the Legislature is ‘allowed to take reform ‘one step at a time,’ and is not required “to

9 The Michigan Supreme Court has held that Michigan’s equal protection clause, Const 1963, art. 1, § 2, is coextensive with the federal Equal Protection Clause. Frame v. Nehls, 452 Mich. 171; 550 N.W.2d 739 (1996).


27

cover every evil that might conceivably have been attacked”). The general rule is that legislation

is presumed to be valid and will be sustained if the classification drawn by the statute is

rationally related to a legitimate state interest. City of Cleburne, 473 U.S. at 440.

There is no equal protection violation here. First, neither absent voters nor those who

reside in Michigan’s covered jurisdictions are similarly situated to in-person voters in non-

covered jurisdictions. Absent voters are not physically present at the polls and so cannot interact

with election inspectors, as can in-person voters. Covered jurisdictions by their very nature are

distinct from non-covered jurisdictions. Second, the citizenship question should be presumed

valid because there is no evidence of classifications being drawn based on invidious

discrimination. Third, any classifications that arise due to a small number of clerks who

disregard their sworn duty and do not follow the Secretary’s clear directives for November or do

not properly train their elections inspectors, are minor and not under the immediate control of the

Secretary. A non-compliant clerk may be a more appropriate party to be answering to this Court.

Fourth, under current procedures neither absentee voters nor in-person voters are denied a ballot

as a result of refusing or neglecting to answer the citizenship question.

Moreover, there is a rational, nondiscriminatory reason why in-person voters who refuse

to answer the citizenship question are not treated the same as absentee voters who do not answer

the same question. Absentee voters declare under threat of criminal penalty that they are of

requisite age and either a precinct inspector at a precinct other than the precinct where they

reside or unable to attend the polls. Mich. Comp. Laws § 168.759(5). Since absentee voters

cannot be physically present at the polls, they are not available to interact with election

inspectors. There is also a rational basis for treating voters in the covered jurisdictions


28

differently than other voters. Section 5 of the Voting Rights Act actually envisions unequal

treatment of the covered jurisdictions.

As to allegations of inconsistent application at the various polling locations, it is telling

that Plaintiffs have not brought an access-to-the-ballot challenge. That is because they cannot

support such a challenge. Yet they attempt to use predicted disenfranchisement of some voters

as a basis for supporting their equal protection challenge. (R. 1, Compl, p. 16, Count I – Equal

Protection.) They also use voters’ disenfranchisement due to the potential fear of producing

“proof of citizenship” to support their equal protection challenge. (R. 1, Compl., ¶¶53, 54.) This

is a blatantly misleading argument since the question neither requires nor suggests proof of

citizenship. The bottom line: all voters will be treated equally in that all will receive a ballot.

The citizenship question also will not be difficult to implement in November, and is not

likely to create classifications by jurisdiction or precinct unless local clerks do not follow the

Secretary’s directives (See Attach. 1, Thomas Aff., ¶ 20 a & b; ¶ 22) or properly train elections

inspectors. It is hard to imagine a more innocuous question than whether a voter is a United

States citizen; indeed, qualified voters will be neither surprised nor deterred by the question.

And the question is wholly consistent with the Federal Voting Assistance Program application

process. (Attach. 3, Preclearance Submission, exhibit, FVAP screen shot.) Additionally,

training and education is already underway, including: (1) the Secretary’s recent instructions to

clerks to use the question but not deny anyone a ballot (Attach. 1, Thomas aff., ¶ 20 a & b); (2)

the relatively simple procedure that the local clerks have been instructed to follow (and train

their precinct inspectors to follow) if an individual at the polls in November refuses to sign the

citizenship question. (Id.); (3) the upcoming clerk training, which will include instructions on

the citizenship question (Id. at ¶ 22); and (4) upcoming voter education initiatives regarding the


29

use of the citizenship question in November. (Id., ¶ 23.) So the use of the question at the polls

in November will not create equal protection violations, and most importantly, will not

disenfranchise any voter.

Past problems with the citizenship question have been grossly exaggerated. The question

has been used by local clerks dating back to 2002. It was utilized in February and September

without incident. (Attach. 1, Thomas Aff, ¶ 11.) Over 1.2 million voters cast ballots at the

February 28, 2012 Presidential Primary, yet the Bureau of Elections did not receive any

complaints regarding the citizenship verification question. (Id.), ¶ 11.) And the problems that

arose during the August 7 primary were minimal if not contrived. Approximately 1.5 million

Michigan voters voted without incident during that election. Plaintiffs present fewer than 16

instances of individuals who indicated confusion or intimidation—or approximately .000008

percent of the voters— and all ultimately voted. Within the clerk community, .0032 percent of

the clerks had a problem with implementation during the primary. Also, as discussed earlier, the

August primary appears to have been an “orchestrated effort” aimed at stopping the use of the

question. Two of the named individual Plaintiffs here and 8 of the 11 individuals who submitted

declarations managed to answer the citizenship question and vote without incident in the

February Presidential Primary. (Attach. 1, Malerman Aff, ¶¶ 9-13.)

In short, Plaintiffs are unlikely to succeed on their equal protection claim.

E. The Voting Rights Act claim is wholly insubstantial because it is moot or not ripe and should be dismissed.

Courts lack judicial power to entertain and decide moot cases. See Los Angeles County v.

Davis, 440 U.S. 625, 631 (1979). Again, if events occur that prevent the court from giving

meaningful relief, the case is moot and must be dismissed. Ailor, 368 F.3d at 596. Plaintiffs’


30

Voting Rights Act claim is moot. The Secretary is already in the process of seeking preclearance

with the Department of Justice10 and has asked for an answer prior to the October 17, 2012

deadline for training local clerks. (Attach. 3, Preclearance app; Attach. 1, Thomas Aff., ¶ 19.)

Moreover, the Secretary has made clear that in the unlikely event preclearance is not received,

the citizenship question will not be used in the two townships covered by Section 5 of the Voting

Rights Act. Alternatively, this claim is not ripe unless the Department of Justice denies the

Secretary’s request for preclearance yet the Secretary nevertheless demonstrates plans to

implement the question in these covered jurisdictions during the November election. This is a

factual pattern she has clearly stated will not happen.

As a result, this Court cannot give meaningful relief on the underlying merits of the

Voting Rights Act claim and the claim is therefore wholly insubstantial. This Court—without a

three-judge panel—can and should dismiss this claim. See Hernandez v. Thomas, No. 92-173,

1993 U.S. Dist LEXIS 21285 at 5-6 (W.D. Mich 1993) (unpublished) (citing Miller v. Daniels,

509 F. Supp. 400, 405 (S.D.N.Y. 1981) (“Courts confronted with section 5 claims . . have

consistently held that a single judge may dismiss section 5 claims that are wholly insubstantial

and completely without merit) (citations omitted)). See also Armour v State of Ohio, 925 F.2d

987 (6th Cir. 1991) (confirming ability of one judge to dismiss Section 2 Voting Rights Act

claim).

III. The balance of equities weighs in the Secretary’s favor.

10 Where only certain political subunits within a State are covered, “the State may make a submission on their behalf.” 28 C.F.R. § 51.23. Thus, Michigan’s duty to seek preclearance as to Saginaw Twp. and Buena Vista Twp. is permissive rather than mandatory. See In the Matter of Grand Jury Investigation (90-3-2), 748 F. Supp. 1188 (E.D. Mich. 1990).


31

On balance, the equities weigh in the Secretary’s favor. She has the legal authority to

issue clear instructions and training to the local clerks with respect to the use of the citizenship

question at the polls in November. Most importantly, under the Secretary’s clear instructions, no

voter will be denied a ballot. Accordingly, any injunction at this stage undermines the

Secretary’s federal and state authority to oversee election procedures. US Const, Article I, § 4

(providing that states may prescribe “[t]he Times, Places and Manner of holding Elections for

Senators and Representatives”)11; Mich. Comp. Laws § 168.31. Equally important, it would

jeopardize her ability to run an orderly election, since Plaintiffs’ eleventh-hour request is likely

to cause more problems, delays, and confusion than it solves. Too, an eleventh-hour injunction

would prevent the Secretary from protecting against vote dilution by ensuring that only qualified

voters cast votes.

On the other hand, for four reasons Plaintiffs are not entitled to the extraordinary relief

they seek. First, they have not demonstrated that Michigan citizens will be harmed by the use of

the citizenship question. Second, they have not demonstrated that injunction is necessary or

would be effective, especially where clerk instructions and voter education initiatives are in

already available or in place for November and the Secretary is willing to stipulate as to the

covered jurisdictions. Third, any minor problems associated with the use of the question in the

absent voter context cannot be remedied at this late juncture. Moreover, even if Plaintiffs were

granted the relief requested, there would be absent voter ballots with different requirements since

the overseas and military voters applications will continue to contain both a citizenship question

11 The United States Supreme Court has long recognized that these words embrace authority not just for times and places, but also “in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. Smiley v. Holm, 285 U.S. 355, 366 (1932).


32

and a citizenship attestation clause. Fourth, Plaintiffs have unreasonably delayed in bringing this

action, to the potential detriment of Michigan voters and the orderly running of the November

election.

IV. A preliminary injunction would not be in the public interest.

As argued above, Michigan voters will not be harmed by the use of the citizenship

question. The majority of Michigan citizens are aware that United States citizenship is a

prerequisite to voting, and all citizens will have access to the Secretary’s voter education

initiatives. (Attach. 1, Thomas Aff., ¶ 23.) And again, Michigan’s use of the citizenship

question closely tracks the Federal Voting Assistance Program application process, which

likewise requires individuals who apply for an absent voter ballot to affirm their United States

citizenship. (Attachment 3, Preclearance app., exhibit, FVAP write-in absentee ballot screen

shot.) Additionally, no citizen who is entitled to vote will be denied a ballot. Nor can the

streamlined procedure now in place to address the small percentage of those who may refuse to

answer the question reasonably account for the expected long delays at the polls this November.

Too, as Election Law Specialist Melissa Malerman has demonstrated through her

affidavit, (Attach. 2, Malerman Aff., ¶¶ 9-13), the alleged “total confusion” during the August

primary appears to have been an orchestrated effort aimed at creating a made-for-media election

controversy to nix the citizenship question. There were reported problems in only .0023 of the

total 4,900 polling sites statewide, and only 4 appear to have been citizen complaints as opposed

to contacts to Representative Byrum or other individuals. The Facebook rants contained in

Jocelyn Benson’s spreadsheet cannot be taken as serious complaints. (R. 4, Pls.’ Br. in Supp.

Mot. for Prelim. Inj., Ex. 8.) One would expect a legitimate claim of voter disenfranchisement


33

to be presented to a clerk or the Secretary of State rather than posted to Facebook. And many of

the authors of these comments specifically indicate they were issued a ballot.

Finally, the pre-election statements of a handful of local clerks who threaten to not fulfill

their sworn duty to follow the Secretary’s instructions on implementation of the citizenship

question at the polls, do not justify prohibiting the citizens in all 4.900 local polling sites from

benefitting from the inclusion of the question and the protection against voter dilution.

In contrast to the minimal burdens associated with the question, Michigan citizens will be

harmed if the citizenship question is not used. Use of the question will warn non-citizens who

have inadvertently been placed on Michigan’s voter rolls, that they would be committing a crime

if they case a vote as well as ensure that no legitimately cast vote is diluted In Michigan, non-

citizens have gained access, albeit inadvertently, to the voter rolls of the State. Michigan’s voter

rolls may contain as many as 4,000 registered voters who are not U.S. citizens. (Attach. 5, SOS

Sept. 18, 2012 press release.) Assessments of initial data have already verify that nearly 1,000

people who are non-citizens are registered to vote. Id. Non-citizens have actually voted in state

and federal elections. The citizenship question is yet another effort by the Secretary to (1) warn

non-citizens who are registered to vote that they are subject to criminal penalties and may

jeopardize their path to citizenship if they cast a vote; and (2) ensure that legitimate votes are not

diluted by non-citizen votes. The United States Supreme Court has recognized that the right to

vote can be jeopardized by “debasement or dilution of the weight of a citizen’s vote just as

effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds, 377 U.S. at

555. Accordingly, by instituting requirements to guard against the abuse of the elective process,

the Secretary protects the right of lawful voters to exercise their full share of the franchise.


34

Lastly, because of Plaintiffs’ dilatory conduct in filing this action so close to the

November general election, a preliminary injunction will be fraught with problems that

jeopardize the orderly running of the election, not the least of which are voter confusion and

outrage at the removal of the question and last-minute printing of applications to vote to comply

with the order. As the Supreme Court has recognized, court orders affecting elections can

themselves result in voter confusion and “consequent incentive to remain away from the polls.”

Purcell, 549 U.S. at 5.

In sum, the public interest will be served by denial of the requested preliminary

injunction.

CONCLUSION AND RELIEF REQUESTED

Plaintiffs have been dilatory in filing this action and this expedited request for injunctive

relief. They also have not presented any imminent irreparable harm from the use of a citizenship

question—only problems with prior implementation that are exaggerated and to some extent

“orchestrated and predictions of future inconsistent application that are wholly speculative,

exaggerated, or under the immediate control of local clerks. Neither have they demonstrated a

likelihood of success on the merits, because no voter will be disenfranchised. Instead, the

requested injunction will create more confusion and hamper the Secretary’s ability to prevent

vote dilution and avoid criminal prosecutions.


35

WHEREFORE, for all these reasons and those contained in this brief, Defendant

Michigan Secretary of State Ruth Johnson respectfully requests that this Court deny Plaintiffs’

motion for preliminary injunction.

Respectfully submitted, BILL SCHUETTE Attorney General s/Ann M. Sherman Ann M. Sherman (P67762) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, MI 48909 517.373.6434 E-mail: [email protected]

Dated: September 25, 2012 P67762

CERTIFICATE OF SERVICE

I hereby certify that on ____________, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing of the foregoing document as well as via US Mail to all non-ECF participants. s/Ann M. Sherman

Ann M. Sherman P.O. Box 30736

Lansing, Michigan 48909 517.373.6434 Email: [email protected] P67762


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL BRYANTON, GLENN REHAHN, CHERYL MERRILL, RICHARD L. ROBINSON, SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 517M, SEIU MICHIGAN STATE COUNCIL, LATIN AMERICANS FOR SOCIAL AND ECONOMIC DEVELOPMENT LA-SED), AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiffs, v RUTH JOHNSON, in her official capacity as Michigan Secretary of State, Defendant.

No. 2:12-cv-14114 HON. PAUL D. BORMAN MAG. PAUL J. KOMIVES

Andrew A. Nickelhoff (P37990) Mary Ellen Gurewitz (P25724) Attorneys for Plaintiffs 1000 Farmer Street Detroit, Michigan 48226 313.496.9429

Maryann Parker Attorney for SEIU Local 517M & SEIU Michigan State Council 1800 Massachusetts Ave NW Washington, DC 20036 202.730.7734 [email protected]

Ann M. Sherman (P67762) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendant P.O. Box 30736 Lansing, Michigan 48909 517.373.6434 /

Daniel S. Korobkin (P72842) Attorney for Plaintiffs 2966 Woodward Avenue Detroit, Michigan 48201 313.578.6824 [email protected]

EXHIBIT LIST

1. Affidavit of Christopher M. Thomas 2. Affidavit of Melissa K. Malerman 3. Submission for Preclearance 4. Detroit News Article 5. Press Release 09.18.12

2:12-cv-14114-PDB-PJK Doc # 12-1 Filed 09/25/12 Pg 1 of 1 Pg ID 631














































































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