09/17/10 Attorney Lubkin informed Good Morning Flint that the Federal Court has denied the recall committees request for a preliminary injunction. The opinion follows.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID DAVENPORT ET AL.,
Plaintiffs,
v.
GENESEE COUNTY ET AL.
Defendants.
/
Case No. 10-CV-13503
Honorable Arthur J. Tarnow
United States District Judge
OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY
INJUNCTION [5]
I. INTRODUCTION
Plaintiffs have filed this case claiming constitutional violations in the way Defendants
have processed the petitions seeking to place the question of the recall of Mayor Walling on the
November 2, 2010 ballot. Plaintiffs also claim that the challenge to their recall petitions filed by
the entity “Friends of Dayne Walling” was invalid, as it was not filed by Dayne Walling himself.
Plaintiffs seek a preliminary injunction to compel Defendants to place the recall on the
November ballot. Plaintiffs claim that the procedures used to verify the signatures on the recall
petitions were arbitrary, which resulted in constitutional violations. They specifically claim that
the Michigan recall laws as applied to them violated their First, Fifth, and Fourteenth
Amendment rights.
The Court disagrees for the following reasons and denies the motion for preliminary
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injunction.
II. BACKGROUND
Procedural History
Plaintiffs filed a complaint in the Genesee County Circuit Court on August 31, 2010.
Defendants then removed the case to this Court on September 2, 2010. On September 3, 2010,
Plaintiffs filed a Motion for Preliminary Injunction that is now before the Court.
Review Process
The statutory period allowed for reviewing petitions is thirty-five days. TRO Hr’g Tr.
9, Sept. 9, 2010 [hereinafter TRO Tr. 1]. The petitions are first filed with the County Clerk, who
has seven days to do a preliminary examination of the signatures. Id. The City Clerk has fifteen
days to review the signatures for any defects. The official who is the subject of the recall has
eight days to file a challenge. If there is a challenge filed, then the City Clerk has five additional
days to review the challenged signatures. TRO Hr’g Tr. 9-11, Sept. 10, 2010 [hereinafter TRO
Tr. 2]. On September 10, 2010, the parties stipulated that 8,004 signatures were required. Id. at
9.
Facts
The Committee to Recall Dayne Walling and Plaintiff Davenport collected signatures for
petitions to recall the Flint mayor, Dayne Walling. They filed the petitions on July 29, 2010
with the County Clerk. TRO Tr. 1, 2. Plaintiffs submitted more than 14,000 signatures on the
recall petitions. Tr. 2, 8. Plaintiffs received a receipt for submitting 13,738 signatures after 300
were invalidated for obvious statutory deficiencies. Within seven days of the submission of the
petitions, the County Clerk rejected some of the signatures and 12,779 signatures were
forwarded to the City Clerk. Id.
The City Clerk reviewed and removed more signatures leaving 8,267. TRO Tr. 1, 11.
The County Clerk and City Clerk removed signatures if they did not meet the statutory
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1The Court accepted the ratification by Mayor Walling, rendering the challenge by the Friends of
Dayne Walling valid for the reasons stated on the record. TRO Tr. 2, 73.
3
requirements, if the signature did not match the signature in the voting file, or if other
irregularities were present. See TRO Hr’g Tr., Sept. 14, 2010 [hereinafter TRO Tr. 3].
A challenge to the recall was raised with the County Clerk by an entity called “Friends of
Dayne Walling”. TRO Tr. 1, 11-12. Mayor Walling ratified the challenge made by the Friends
of Dayne Walling that was made on his behalf.1 Def. Carr’s Resp. to Pls.’ Mot. for Prelim. Inj.,
Ex. B at 3; see also TRO Tr. 2, at 6, 73. The County Clerk reviewed the challenge by the
Friends of Dayne Walling. TRO Tr. 1, 12. On August 31, 2010, he determined that there were
7,484 valid signatures. Id. The Clerk’s office then notified Plaintiffs and the challenger of the
outcome in a letter dated August 31, 2010, the same day that Plaintiff filed suit in Genesee
County Circuit Court. TRO Tr. 1, 12. The case was removed to this Court.
Evidentiary Hearing
This Court held three hearings on Plaintiffs’ Motion for Preliminary Injunction, including
an evidentiary hearing on September 14, 2010. The Clerk of the City of Flint testified. The
Clerk serves as the chief election official for the City of Flint. The Clerk is responsible for
reviewing recall petitions. This recall was handled the same as other recalls.
The Clerk testified that it is her office’s policy to “err on the side of the voter” if there is
an ambiguity. TRO Tr. 3, 49. She stated that her employees are trained and instructed to review
petitions to make sure that they are properly completed. See TRO Tr. 3. They compare the
signature on the petition with the original voter registration file.
The Clerk testified that she and her staff use codes to identify invalid signatures. The
Secretary of State has identified acceptable invalidation codes. The Secretary of State has also
afforded the local clerks with latitude in developing and using other invalidation codes. Id. at
49. The Clerk developed additional codes because “[she] want[ed] to be very clear in terms of
why the signature was being disqualified as opposed to putting it in a miscellaneous category.”
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2 Here, Plaintiffs do not challenge the statutory scheme on its face.
4
TRO Tr. 3, 64.
III. STANDARD OF REVIEW
Plaintiff is seeking injunctive relief to order the Genesee County Clerk to restore
signatures stricken and to place the recall on the ballot for the November 2, 2010 election.
“A preliminary injunction is reserved for only the most egregious case, and should not be
extended to cases which are doubtful or do not come within well-established principles of law.”
Bonnell v. Lorenzo, 241 F.3d 800, 826 (6th Cir. 2001). The moving party has the “burden of
proving that the circumstances clearly demand [an injunction].” Overstreet v. Lexington-Fayette
Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
When evaluating a motion for preliminary injunction, the Court must consider four
factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the
movant would suffer irreparable injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4) whether the public interest would be
served by issuance of the injunction.” Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of
Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998)).
IV. DISCUSSION
No single factor is controlling of the outcome, although if “there is simply no likelihood
of success on the merits” that is usually “fatal”. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225
F.3d 620, 625 (6th Cir. 2000).
1. Likelihood of Success on the Merits
a. Plaintiffs’ Constitutional Claim
Plaintiffs claim that the statute M.C.L. § 168.958 as applied was unconstitutional. “A
court may hold a statute unconstitutional either because it is invalid ‘on its face’2 or because it is
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unconstitutional ‘as applied’ to a particular set of circumstances.” Women’s Med. Prof’l Corp. v.
Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). At this stage of the litigation the Plaintiffs do not
have to show that they will succeed on the merits, but that there is a substantial likelihood that
they will succeed on the merits.
b. Legal Framework - Recall Procedures
The Michigan State Constitution affords Michigan voters the right to recall “all elective
officers except judges of courts of record” and identifies the minimum number of signatures
required for a recall petition. Mich. Const., of 1963, art. II, § 8 (1963).
Recall procedures are generally governed by the Michigan Compiled Laws §§ 168.951-
.976. M.C.L. § 168.954 states:
A recall petition shall be signed by the registered and qualified electors of the
electoral district of the official whose recall is sought. Each signer of a recall
petition shall affix his or her signature, address, and the date of signing. A person
who signs a recall petition shall be a registered and qualified elector of the
governmental subdivision designated in the heading of the petition.
Id. at .954. Further, § 168.958 discusses the validity of the signatures on a recall petition,
stating:
A petition sheet shall contain only the signatures of qualified and registered electors
of the city.... A qualified and registered elector may sign the petition sheet in any
location at which the petition sheet is available. A petition is not invalid if it
contains the signature of a person who is not a qualified and registered elector of the
appropriate city. . .listed in the heading of that petition sheet.
Id. at .958.
Specific procedures on recall issues are administratively handled by the Secretary of
State, through the Bureau of Elections, and local clerks’ offices. The State has published various
guides for recall procedures.
c. Analysis
Here, Plaintiffs have not met their burden of showing that there is a strong likelihood that
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they will succeed on the merits. Plaintiffs have not shown that M.C.L. 168.958 was applied to
them in a fashion that violated their constitutional rights.
Plaintiffs allege that Defendants inappropriately removed too many signatures, thus
wrongfully rejecting the recall petitions in violation of their First, Fifth, and Fourteenth
Amendment rights. Plaintiffs specifically contest various practices by the City and County
Clerks: 1) the use of invalidation codes, such as “NHS” (meaning “Not His/Her Signature”)
among others. 2) The disqualification of signatures based on the use of ditto marks in certain
sections of the petitions. 3)The invalidation of signatures because of various other irregularities.
Defendants maintain that the Clerks followed the proper laws in reviewing the recall
petitions. The Court agrees.
In the case of Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir.
1993), voters challenged the denial of ballot certification of an initiative petition after a large
number of signatures were invalidated by the Board of State Canvassers due to statutory
deficiencies. Austin, 994 F.2d at 293-94. Plaintiffs filed a 42 U.S.C. § 1983 action alleging a
violation of their First and Fourteenth Amendment rights. Id. Plaintiffs argued that they were
denied their right to vote by the exclusion of some registered voter signatures because “technical
checks” showed a failure to comply with the Michigan laws on initiatives. Id. at 296. The court
held that the plaintiffs’ right to vote was not violated because there is no authority that holds the
signing of a petition to initiate legislation is entitled to the same protection as exercising the right
to vote. Id.
The Austin court also held that the plaintiffs’ First Amendment rights had not been
violated. The court stated that since “the right to initiate legislation is a wholly state-created
right, we believe that the state may constitutionally place nondiscriminatory, content-neutral
limitations on the plaintiffs’ ability to initiate legislation.” Id. at 297. The court found that
Michigan’s initiative “procedure does nothing more than impose nondiscriminatory, contentneutral
restrictions on the plaintiffs’ ability to use the initiative procedure that serves Michigan’s
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interest in maintaining the integrity of its process.” Id. Further, the court stated that “it is
irrelevant that the state could have chosen a better method of protecting its interest in
guaranteeing an honest initiative system.” Id. at 298 (citing Schweiker v. Wilson, 450 U.S. 221,
230 (1981)).
Similarly, here, Plaintiffs challenge the application of Michigan recall law, a state-created
right, and the removal of petition signatures for various reasons. Plaintiffs especially take issue
with the review methods that were used by the local clerks where the law was silent as to the
exact procedure. Plaintiffs have not shown that the procedures used were inconsistent with
Michigan recall law, nor have they shown that the review method used by the local clerks with
respect to their specific recall petitions was discriminatory, arbitrary, or deliberately designed to
harm Plaintiffs.
Plaintiffs argued that the local clerks used “rogue codes” that were not specifically
approved by the Secretary of State. However, Plaintiffs have not shown any evidence suggesting
that the use of alternate codes is unlawful. In fact, the Clerk of the City of Flint testified that she
was “given latitude” with respect to using more specific codes as a way to mark invalidated
signatures. TRO Hr’g 3, 48. Further, Plaintiffs have not shown how the codes used violated
their constitutional rights. In fact, the Clerk stated that she used the additional codes in order to
be more clear instead of using a miscellaneous code.
Plaintiffs also argued that the disqualification of petition signatures because of the use of
ditto marks in some of the fields of the form was improper. However, according to the Michigan
Bureau of Elections, “in any instance where a signer enters ditto marks in the residential address
entry or the date entry, the signature is invalid and not counted.” BUREAU OF ELECTIONS,
MICHIGAN RECALL PROCEDURES: A GENERAL OVERVIEW (2008), available at
http://www.michigan.gov/documents/sos/Recall_Procedures2_211779.pdf (emphasis in
original). This practice is not unconstitutional.
Plaintiffs raised many general concerns with the signature review procedures with respect
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to the interpretation of the way a number was written, signatures of people with common names
with a change of address, and more. However, it is not up to the Plaintiffs or the Court to
establish signature review procedures. Although Plaintiffs have shown that there are some
people whose signatures were valid yet invalidated erroneously, Plaintiffs have not shown
deliberate error or evidence of an arbitrary process.
Similar to the Austin case, here, Defendants are not required to use the best method of
signature review. Human error is sometimes part of the process. Deference must be given to the
local clerks. Even if the Clerk had wrongfully interpreted or misapplied the law, her actions
would not rise to a Fourteenth Amendment violation, which could only be established with a
showing of discrimination on her part. See Ventre v. Ryder, 176 F. Supp. 90, 94-95 (D.C. La.
1959).
Plaintiffs have not met their burden of showing that there is a substantial likelihood that
they will succeed on the merits.
2. Irreparable Harm
Plaintiffs argue that in the absence of a preliminary injunction they will suffer irreparable
harm. Had Plaintiffs shown that there was deliberate action by Defendants to strike valid
signatures or that the review method used by the clerk was arbitrary, then the issue of irreparable
harm would have been a clear factor in favor of the Plaintiffs because of the three month delay
between the November and February election dates. If the potential three month delay were the
only factor in deciding this issue, then it would probably weigh in favor of Plaintiffs. However,
Plaintiffs did not meet their burden, nor have they shown that they will suffer irreparable harm if
the injunction is not issued.
3. Substantial Harm to Others
Plaintiffs contend that the preliminary injunction would not cause substantial harm to
others because “[e]ither way, ballots will have to be printed . . . .” Pls.’ Reply 12. Defendants
argue that due to the tight timetables surrounding elections, that the deadline for the ballot to be
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printed has already passed. Thus, there would be additional costs associated with the ballot
printing. However, Defendants have not established that the extra costs would result in
“substantial harm” to the State. Consequently, this factor cannot weigh against the granting of a
preliminary injunction.
4. Public Interest
Plaintiffs argue that the public interest would be served by the issuance of a preliminary
injunction because it would vindicate the rights of those who validly signed the recall petition.
Plaintiffs argument is not without merit. However, it fails to consider the interests of the
majority of voters that elected Mayor Walling.
More importantly, it ignores the State’s “strong interest in ensuring that its elections are
run fairly and honestly.” Austin, 994 F.2d at 297 (citing Anderson v. Celebreeze, 460 U.S. 780,
788 (1983)). “[A]s a practical matter, there must be a substantial regulation of elections if they
are to be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic processes.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citing Storer v. Brown,
415 U.S. 724, 730 (1974)). This factor weighs against the issuance of the injunction.
V. CONCLUSION
Although Plaintiffs have shown that there may have been some errors by Defendants in
removing valid signatures, Plaintiffs have not met their burden in showing that the issuance of a
preliminary injunction in this case is warranted.
For the reasons discussed above, and the Court being fully advised in the premises,
Plaintiffs’ Motion for Preliminary Injunction must be denied.
IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction is DENIED.
IT IS SO ORDERED
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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