Justia Election Law Opinion Summaries

Voter-advocacy organizations challenged Michigan statutes regulating absentee ballots and mandating that no one “hire a motor vehicle or other conveyance or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election." Michigan Attorney General Nessel was the named defendant; permissive intervenor status was granted to both houses of the Michigan Legislature, and the Republican Party. The court rejected challenges to the absentee-ballot statute but preliminarily enjoined enforcement of the voter-transportation law. When the intervenors sought an emergency stay of the injunction pending appeal, Nessel declined to take a position. The district court denied the intervenors’ motion.The Sixth Circuit granted an emergency stay. The legislature has standing to appeal. The state statute is likely not preempted by federal law, the Federal Election Campaign Act, 52 U.S.C. 30143. The balance of equities weighs in favor of staying the order. The harm to the legislature without a stay would be irreparable: election day will only happen once, and the legislature will lose its ability to regulate paid voter transportation for that election. The harm to the voter-advocacy organizations appears modest. There are other ways, without violating Michigan’s statute, to take voters to the polls. With the expansion of mailed ballots in Michigan, there are likely fewer voters who need to be driven to the polls. The public interest lies in elections conducted with a minimum of fraud and in free elections, in which as many eligible voters can vote as desire to. View "Priorities USA v. Nessel" on Justia Law

Organizations involved in voter outreach in Tennessee and one individual Tennessee voter sued Tennessee government officials involved in election enforcement, challenging the Tennessee statutory scheme that governs absentee voting. On September 9, the district court granted a preliminary injunction, prohibiting the enforcement of Tenn. Code 2-2-115(b)(7), which prevents individuals who registered to vote by submitting a registration form online or by mail from voting absentee during the first election after they had registered.The Sixth Circuit denied a motion to stay that injunction. Disrupting the new rules at this point would pose a significant risk of harm to the public interest in orderly elections, while there is no substantial harm to defendants in continuing to comply with rules they are currently following. The defendants did not file their appeal of the preliminary injunction until nearly one month after it went into effect. During the period between September 9, the day of issuance of the preliminary injunction, and October 15, the day the plaintiffs’ response was filed, both absentee voting and early in-person voting had begun in Tennessee. View "Memphis A. Philip Randolph Institute v. Hargett" on Justia Law

Tennessee voters must apply to vote absentee. The county administrator of elections determines whether the voter has established eligibility to vote absentee, and compares the signature of the voter on the request with the signature on the voter’s registration record. Voters who qualify to vote absentee receive a ballot, an inner envelope and an outer envelope, and instructions. The inner envelope has an affidavit; the voter must verify that he is eligible to vote in the election. The ballot must be received no later than when the polls close. Upon receipt by mail of the absentee ballot, the administrator "shall open only the outer envelope and compare the voter’s signature on the [affidavit] with the voter’s signature" on the registration record. If the administrator determines the signatures do not match, the ballot is rejected; the voter is “immediately” notified in writing. Voters who are concerned that their absentee ballot might be rejected may cast a provisional ballot before being notified of a rejection.The Sixth Circuit affirmed the denial of a preliminary injunction to prohibit the enforcement of the signature verification procedures. The plaintiffs cannot cite with certainty or specification any past erroneous rejection of an absentee ballot; their speculative allegations of harm are insufficient to establish standing. The plaintiffs have not demonstrated that anyone whose ballot may be erroneously rejected will ultimately be unable to vote, either absentee or by provisional ballot; there is no evidence that anyone’s constitutional rights are likely to be infringed. View "Memphis A. Philip Randolph Institute v. Hargett" on Justia Law

Kishore and Santa Cruz seek to have their names placed on the Michigan ballot as candidates for president and vice president, without complying with the state’s ballot-access laws. They contend that the ballot-access requirements, as applied, are unconstitutionally burdensome under the First and Fourteenth Amendments when enforced alongside Michigan’s orders restricting in-person gatherings during the COVID-19 pandemic. The Sixth Circuit affirmed the district court in denying injunctive relief. On balance, the state’s well-established and legitimate interests in administering its own elections through candidate-eligibility and ballot-access requirements outweigh the intermediate burden imposed on the Plaintiffs. The court noted that previous litigation reduced the number of signatures required for independent candidates. The Plaintiffs had the opportunity to collect signatures with no restriction from the beginning of their campaign (January 18) to the date of Governor Whitmer’s first Stay-at-Home Order (March 23) and again from the date of the reopening orders (June 1) to the filing deadline (July 16). In all this time, the Plaintiffs have not obtained a single signature on their qualifying petition. View "Kishore v. Whitmer" on Justia Law

Two plaintiffs sought to qualify to run as independent candidates for President of the United States in the 2020 election. Ohio law requires them to file a nominating petition with at least 5,000 signatures of qualified Ohio electors by August 5, 2020. Each individual circulating petitions for an independent candidate must sign a statement stating that they witnessed the signature. Other plaintiffs sought to gather signatures to nominate candidates for the November 2020 election and to form the Green Party as a minor political party under Ohio law. To attain that status, the Party must file a party formation petition by June 30, 2020, with signatures collected in person.The plaintiffs’ signature collection efforts were ongoing until the beginning of the pandemic. Ohio began issuing orders that restricted person-to-person contact, first prohibiting gatherings of 100 or more people then limiting gatherings to 50 people. On March 22, the state issued an order requiring Ohioans to stay at home. Each of the orders contained an explicit exception for conduct protected by the First Amendment. On April 30, as the stay-at-home order eased, Ohio continued to prohibit most “public and private gatherings,” but explicitly excepted First Amendment protected speech, including “petition and referendum circulators.”The Sixth Circuit affirmed the dismissal of the suit. The ballot-access requirements, as applied, are not unconstitutionally burdensome in light of the orders restricting in-person gatherings. View "Hawkins v. DeWine" on Justia Law

The Plaintiffs claimed that Ohio’s COVID-19 restrictions and stay-at-home orders have made it impossibly difficult for them to meet existing requirements for initiatives to secure a place on the November ballot, in violation of their First Amendment rights. An Ohio petition for a referendum must include signatures from 10 percent of the applicable jurisdiction’s electors that voted in the last gubernatorial election, each signature must “be written in ink,” and the initiative’s circulator must witness each signature. The initiative’s proponents must submit these signatures to the Secretary of State 125 days before the election for a constitutional amendment and 110 days before the election for a municipal ordinance. Ohio’s officials postponed the Ohio primary election but declined to further modify state election law. The district court granted a preliminary injunction, imposing a new deadline and prescribing the type of signature that the state must accept. The Sixth Circuit granted a stay of the injunction. Ohio’s compelling and well-established interests in administering its ballot initiative regulations outweigh the intermediate burden those regulations place on the plaintiffs. Ohio specifically exempted conduct protected by the First Amendment from its stay-home orders; the court means by which petitioners could obtain signatures. By unilaterally modifying the Ohio Constitution’s ballot initiative regulations, the district court usurped this authority from Ohio electors. View "Thompson v. DeWine" on Justia Law

Electors voted to establish a commission of citizens to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress, every 10 years. Article IV, section 6 of the amended Michigan Constitution establishes the membership criteria for this “independent citizens redistricting commission,” excluding eight classes of individuals with certain current or past political ties. A final decision to adopt a redistricting plan requires a majority vote, including at least two commissioners who affiliate with each major party, and at least two who do not affiliate with either party. Commission members may not discuss redistricting matters outside of an open meeting, except under specific circumstances. The Republican Party and individuals sought a preliminary injunction, alleging that the eligibility criteria violated the First and Fourteenth Amendments; that allowing applicants to self-identify as Republicans violated the Party’s freedom of association; that the Commission’s composition was viewpoint-discriminatory; and that the speech provision violated the First Amendment.The Sixth Circuit affirmed the denial of relief. The Amendment’s eligibility criteria do not burden the plaintiffs based on their status as Republicans. Even if the criteria imposed a moderate burden on First Amendment activities, they would satisfy a “flexible analysis.” There is no constitutional limitation on Michigan making the forbearance from certain activities a condition of sitting on the commission. The eligibility criteria are essential to the definition of this Commission and its independence from partisan meddling. The Party does not have a First Amendment right to control the self-affiliation of commissioner-applicants. Although the speech provision does burden the commissioners’ freedom to speak about redistricting, this burden is outweighed by Michigan’s more-than-adequate justifications. Michigan’s effort to ensure that a sizeable minority of commission members are non-affiliated does not violate the First Amendment. View "Daunt v. Benson" on Justia Law

Any Ohio registered voter may cast an absentee ballot, starting about a month before election day, but the state requires voters to request an absentee ballot by noon, three days before election day. The lone exception is for unexpectedly hospitalized electors, who may request an absentee ballot until 3 p.m. on election day. Police arrested the plaintiffs the weekend before election day 2018. Foreseeing their confinement through the upcoming election, they sued for access to absentee ballots on behalf of themselves and a class of similar individuals, with an Equal Protection claim, challenging the disparate treatment of hospital-confined and jail-confined electors, and a First Amendment claim. The trial court permitted the plaintiffs to vote in November 2018 but declined to extend that relief to the class. The district court then granted the plaintiffs summary judgment.The Sixth Circuit reversed. The burden on the plaintiffs’ right to vote is intermediate, somewhere “between slight and severe.” They are not totally denied a chance to vote by Ohio’s absentee ballot deadlines, so the laws survive if the state’s justifications outweigh this moderate burden. The state identified several counties that do not have adequate resources to process late absentee ballot requests from unexpectedly jail-confined electors without foregoing other duties necessary to ensure the orderly administration of Ohio’s elections. View "Mays v. LaRose" on Justia Law

The plaintiffs sued, alleging that, in future elections, the defendants (various officials) will burden their right to vote, dilute their votes, and disenfranchise them in violation of the Equal Protection and Due Process clauses. The plaintiffs cited election administration problems: election workers are poorly trained, sometimes distributing the wrong ballots, sometimes recording the wrong address when registering a voter; failure to recertify the voting machines; failure to follow fair protocols for uploading votes; the use of digital voting machines, vulnerable to hacking and cyberattacks, that do not produce a paper record of each voter’s choices.The Sixth Circuit affirmed the dismissal of the suit. The complaint’s allegations with respect to injury all reference prior system vulnerabilities, previous equipment malfunctions, and past election mistakes; nearly all of the allegations of past harm stem from human error rather than errors caused by the voting machines or hacking. Fear that individual mistakes will recur, generally speaking, does not create a cognizable imminent risk of harm. The plaintiffs do not allege that Shelby County election officials always make these mistakes or that the government entities ordered the election workers to make such mistakes. The plaintiffs have not plausibly shown that there is a substantial risk of vote flipping. Without imminent harm, the individual plaintiffs have no standing to sue. The plaintiffs allege only policies that add risk to the ever-present possibility that an election worker will make a mistake. View "Shelby Advocates for Valid Elections v. Hargett" on Justia Law

Plaintiffs submitted proposed ballot initiatives to the Portage County Board of Elections that would effectively decriminalize marijuana possession in Garrettsville and Windham, Ohio. The Board declined to certify the proposed initiatives, concluding that the initiatives fell outside the scope of the municipalities’ legislative authority. Plaintiffs sued, asserting that the statutes governing Ohio’s municipal ballot-initiative process impose a prior restraint on their political speech, violating their First and Fourteenth Amendment rights. The district court permanently enjoined the Board of Elections and the Ohio Secretary of State, from enforcing the statutes in any manner that failed to provide for adequate judicial review. The Sixth Circuit vacated the injunction. A person or party may express beliefs or ideas through a ballot, but ballots serve primarily to elect candidates, not as forums for political expression. Heightened procedural requirements imposed on systems of prior restraint are inappropriate in the context of ballot-initiative preclearance regulations. The court applied the “Anderson-Burdick” framework and weighted the character and magnitude of the burden the state’s rule against the interests the state contends justify that burden and considered the extent to which the state’s concerns make the burden necessary. The state affords aggrieved ballot-initiative proponents adequate procedural rights through the availability of mandamus relief in the state courts. View "Schmitt v. LaRose" on Justia Law