Esshaki v. Whitmer

455 F.Supp.3d 367

Eric ESSHAKI, as candidate for United States Congress and in his individual capacity; Matt Savich, as candidate for the Forty-Seventh District Court, Oakland County, Michigan and in his individual capacity; Deana Beard, as candidate for the Third Circuit Court Judge, Regular Term, Non-Incumbent Position in Wayne County and in her individual capacity. Plaintiffs,

v.Gretchen WHITMER, Governor of Michigan; Jocelyn Benson, Secretary of State of Michigan; and Jonathan Brater, Director of the Michigan Bureau of Elections, in their official capacities, Defendants.

2:20-CV-10831-TGB

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

Signed April 20, 2020

Gregory J. Rohl, Law Offices of Gregory J. Rohl, P.C., Novi, MI, for Plaintiffs.

Heather S. Meingast, MI Department of Attorney General, Lansing, MI, for Defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

TERRENCE G. BERG, United States District Judge

In normal times, a candidate for United States Congress in Michigan's Eleventh Congressional District must collect one thousand signatures from registered voters in order to have his or her name appear on the primary ballot. Candidates typically gather these signatures door-to-door, or in high-traffic public places like outside malls, grocery stores, crowded school or community events, public rallies, or places of worship. Under Michigan's statute, the signatures are due on the fifteenth Tuesday before the August 4th primary. This year, signatures are due on April 21, 2020.

Unfortunately, these are not normal times. On March 10, 2020, Michigan Governor Gretchen Whitmer declared a state of emergency based on the serious threat to public safety posed by the COVID-19 or "coronavirus" pandemic. In less than four months, since the first reported case of the disease on American soil in January,¹ this highly contagious novel virus has taken the lives of more than thirty-four thousand Americans, of whom more than two thousand were residents of the State of Michigan.² In addition to causing thousands of deaths, the pandemic has upended the daily routines of hundreds of millions as they sheltered at home, causing one in four small businesses to close,³ and 22 million Americans to lose their jobs.⁴ Since March 23, 2020, pursuant to Executive Order 2020-21, the State of Michigan has been on lockdown: all nonessential in-person work has been prohibited, as have all public and private gatherings of persons not part of the same household. Malls are closed, schools and churches have moved to social media solutions such as Zoom, and any candidate trying to canvass door-to-door to attempt to gather signatures today would be committing a misdemeanor offense.

Yet, the State insists on enforcing the signature-gathering requirements as if its Stay-at-Home Order responding to the ongoing pandemic had no impact on the rights of candidates and the people who may wish to vote for them. The plaintiff⁵ in this matter, Eric Esshaki, is running for United States Congress in Michigan's Eleventh Congressional District. He states that he has gathered more than seven hundred of the one thousand signatures he needs to get on the primary ballot. He contends that because of the Stay-at-Home Order, he was effectively prohibited from collecting the remaining three hundred signatures he needed in time to meet the April 21 deadline, and that consequently he will be barred from having his name appear on the primary ballot. Under these unique historical circumstances, as will be explained in detail below, the Court finds that the State's actions in the form of enforcing both the Stay-at-Home Order and the statutory ballot-access requirements, operate in tandem to impose a severe burden on Plaintiff's ability to seek elected office, in violation of his First and Fourteenth Amendment rights to freedom of speech, freedom of association, equal protection, and due process of the law.

Consequently, the Motion for Preliminary Injunction will be granted.

I. BACKGROUND

Plaintiff Eric Esshaki is a registered nurse and practicing attorney running as a Republican candidate for United States Congress in Michigan's Eleventh Congressional District. Compl. ¶ 2, ECF No. 1, PageID.2. He filed his statement of candidacy with the Federal Election Commission on October 31, 2019. Id. ¶ 18, PageID.5. He is required by statute to collect one thousand valid signatures from registered voters by April 21, 2020 to qualify to have his name placed on the August 4, 2020 primary ballot. Mich. Comp. Laws §§ 168.133, 168.544f (collectively "the signature requirement"). By March 23, 2020, Esshaki's campaign had already collected approximately seven hundred signatures. Compl. ¶ 22, ECF No. 1, PageID.6.

On March 10, 2020, Michigan's first two COVID-19 cases were announced and Governor Gretchen Whitmer declared a state of emergency. See Mich. Exec. Order 2020-4 (Mar. 10, 2020) ("State of Emergency Declaration"). The State of Emergency Declaration cautioned citizens that COVID-19 "is a respiratory disease that can result in serious illness or death ... and can easily spread from person to person." Id . By March 23, 2020, the number of diagnosed coronavirus cases in Michigan had grown to more than nine hundred and thirteen⁶ and the Governor signed Executive Order 2020-21 (the "Stay-at-Home Order"). The Stay-at-Home Order suspended in-person non-essential commercial activities and directed residents to "remain at home or in their place of residence to the maximum extent feasible." Mich. Exec. Order No. 2020-21 (Mar. 23, 2020). It also prohibited all "public and private gatherings of any number of people" not part of a single household and ordered that persons performing essential activities outside of their homes remain six feet apart. Id. The Stay-at-Home Order does not contain any exception for campaign workers. On April 9, 2020, the Governor signed a second executive order extending the Stay-at-Home Order through the end of April. See Mich. Exec. Order No. 2020-42 (Apr. 9, 2020). A violation of the Stay-at-Home Order is a misdemeanor criminal offense. Id. ; Mich. Comp. Laws § 10.33.

Plaintiff and the numerous candidates who have expressed an interest in the outcome of this case⁷ maintain that the Stay-at-Home Order has for all practical purposes denied them the opportunity to collect the signatures that they needed during the timeframe between March 23 and April 21. Mot. for Prelim. Inj., ECF No. 2, PageID.50. Plaintiff contends that the combination of the State's strict enforcement of statutory signature gathering requirements with the Governor's Stay-at-Home Order has placed a severe burden on his ability to run for elected office—in violation of the freedom of speech, freedom of association, equal protection, and due process rights guaranteed to him by the First and Fourteenth Amendments. Compl. ¶ 46, ECF No. 1, PageID.11. Plaintiff argues that the burden placed on him by the State's actions is unconstitutional because the State has neither a compelling interest in enforcing the signature requirement, nor has it narrowly tailored its ballot access requirements to effectuate any compelling interest it may have. ECF No. 2, PageID.55.

Defendants contend that enforcement of the signature requirement in light of the Governor's Stay-at-Home Order has only moderately burdened Plaintiff's ability to run for elective office. Defs. Resp., ECF No. 6, PageID.112. Defendants argue that Plaintiff entered the race relatively late, that he was not diligently collecting signatures before the Stay-at-Home Order was issued, that he should have "doubled down" on his signature-collection efforts during the period between the March 10th State of Emergency Declaration and the March 23rd Stay-at-Home Order, that he could have collected signatures by mail, and that even if he fails to get on the ballot, he can always run as a write-in candidate. Id. at PageID.110-12.

Defendants assert that any burden placed on Plaintiff's ability to run for elective office by the enforcement of the State's signature requirements must be weighed against the State's substantial interest in ensuring that candidates have a significant modicum of support before their names are printed on the ballot. Id. at PageID.113. Defendants argue that a threshold showing of support through signature gathering helps protect the integrity of the electoral process by limiting the number of candidates on the ballot and avoiding voter confusion. Id. Defendants further assert that the State has an interest in maintaining April 21, 2020 as the filing deadline because that date "ensur[es] that the Secretary of State and her staff have sufficient time to canvass petitions, provide a challenge period, and meet the ballot certification deadline, which triggers final preparations for ballot printing by the counties." Id. at PageID.115.

The Court heard oral argument on this motion on April 15, 2020, utilizing the social media platform Zoom. At the hearing, both parties referenced proposed remedies that each had submitted to the Court in camera . Plaintiff seeks an order reducing the required number of signatures by forty percent, so that candidates would only need to collect sixty percent of the required number. Defendants proposed postponing the filing date to May 8, 2020, and offering candidates an approved method to collect signatures by e-mail, and submit them using the Internet, but they opposed any reduction in the required number of signatures. The Court will consider these proposed remedies together with the relevant facts and applicable law in reaching its decision.

II. LEGAL STANDARD

a. Preliminary Injunction

The Court must consider four factors when ruling on a motion for a preliminary injunction: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm absent the injunction; (3) the probability that...