Sawarimedia LLC v. Whitmer

466 F.Supp.3d 758

SAWARIMEDIA LLC, et al., Plaintiffs,

v.Gretchen WHITMER, et al., Defendants.

Case No. 20-cv-11246

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

Signed June 11, 2020

Saura J. Sahu, Clancy Advisors PLC, Ann Arbor, MI, for Plaintiffs.

Deborah Parker, St. Clair Shores, MI, pro se.

Judy Kellogg, Owosso, MI, pro se.

Paul Ely, Buchanan, MI, pro se.

Erik A. Grill, Heather S. Meingast, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION (ECF No. 2)

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

Under Michigan law, citizens who sought to have an initiative proposal placed on the 2020 general election ballot were required to collect more than 340,000 signatures by May 27, 2020. Likewise, Michigan law required certain candidates for Congress who wished to appear on the 2020 primary ballot to obtain 1,000 signatures by April 21, 2020. Against the backdrop of these ballot-access requirements, and in order to combat the COVID-19 pandemic, on March 23, 2020, Defendant Governor Gretchen Whitmer began issuing executive orders that required Michigan residents to stay at home except in very limited circumstances. Those orders remained in effect for more than two months. Notwithstanding the Governor's orders, the State of Michigan continued to strictly enforce its ballot-access signature requirements and filing deadlines against candidates and citizens wishing to place initiatives on the ballot. As a result, some candidates and initiatives that likely would have qualified for the ballot were excluded from the ballot.

A candidate for Congress recently filed suit alleging that the combination of Governor Whitmer's executive orders and the State's strict enforcement of its ballot-access requirements effectively precluded him from obtaining access to the ballot and thereby imposed a severe and intolerable burden on his First Amendment rights. United States District Judge Terrence Berg of this Court and the Sixth Circuit agreed and enjoined the State from strictly enforcing its signature requirements and filing deadlines against the candidate. See Esshaki v. Whitmer , 455 F.Supp. 3d 367 (E.D. Mich. Apr. 20, 2020) (Berg., J.), aff'd in part and rev'd in part , Esshaki v. Whitmer , 813 F. App'x 170 (6th Cir. May 5, 2020).

In this action, Plaintiff SawariMedia LLC, a civil-rights organization that seeks to place an initiative on Michigan's 2020 general election ballot, brings a claim that mirrors the one brought in Esshaki . SawariMedia alleges Governor Whitmer's stay-at-home orders, together with strict enforcement of Michigan's signature requirement and filing deadline, impose a severe and impermissible burden on its First Amendment rights. For the same reasons that Judge Berg and the Sixth Circuit barred strict enforcement of the ballot-access signature requirement and filing deadline against the plaintiff in Esshaki , this Court will enjoin strict enforcement of them against SawariMedia. Accordingly, SawariMedia's motion for a preliminary injunction (see Mot., ECF No. 2) is GRANTED on the terms set forth below.

I

The Michigan Constitution "reserve[s]" to "the people" the "power to propose laws and to enact and reject laws, called the initiative." Mich. Const., 1963, art. 2, § 9. In order to "invoke the initiative," a citizen must submit "petitions signed by a number of registered electors, not less than eight percent ... of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected." Id. A total of 4,250,585 votes were cast in Michigan's last general election for Governor.¹ Thus, 340,047 signatures were required in order to secure a spot for an initiative proposal on Michigan's 2020 general election ballot. Under Michigan law, the petitions containing those signatures had to be filed with the Michigan Secretary of State by not later than May 27, 2020. See Mich. Comp. Laws § 168.471 (requiring the filing of initiative petitions with the Secretary of State "at least 160 days before the election at which the proposed law would appear on the ballot").

Once signed petitions are filed with the Secretary of State, the Board of State Canvassers "shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered [voters]." Mich. Comp. Laws § 168.476. During this canvassing process, the Board of State Canvassers, among other things, reviews a "random sampl[e]" of signatures to determine if the signatures are valid. (Decl. of Defendant Jonathan Brater, Michigan Director of Elections, at ¶7, ECF No. 7-2, PageID.149-151.) "Every petition within the random sample is reviewed for facial validity," and valid signatures are then "checked against the Qualified Voter File [ ] to verify the signer's registration status." (Id. , PageID.150.) The canvassing process also allows interested parties to challenge a determination made about a signature's validity. (See id. ) "It takes approximately 60 days to complete the random sampling and challenge process." (Id. , PageID. 151.) The Board of State Canvassers must complete their canvass and "shall make an official declaration of the sufficiency or insufficiency of an initiative petition no later than 100 days before the election at which the proposal is to be submitted." Mich. Comp. Laws § 168.477(1).

If the Board of State Canvassers declares that an initiative petition has sufficient signatures, the Michigan Legislature then has "40 session days" to either "enact[ ]" the proposal "without change or amendment" or reject the proposal. Mich. Const., 1963, art. 2, § 9. "If the Legislature does not enact the proposal within 40 session days, the Board of State Canvassers must prepare the proposal for the ballot by assigning a numerical ballot designation and approving ballot wording by no later than the 60th day prior to the election." (Brater Decl. at ¶11, ECF No. 7-2, PageID.151-152, citing Mich. Comp. Laws §§ 168.474a, 168.480.) Ballots are then prepared, printed, and mailed to military and overseas voters. See Mich. Comp. Laws §§ 168.759a, 168.714.

For the 2020 general election, the relevant dates are as follows:

DATE	ACTION
May 27, 2020	Petitions for initiatives that include at least 340,047 valid signatures must be filed with the Michigan Secretary of State
May 27, 2020 – July 23, 2020	Board of State Canvassers canvass petitions
July 24, 2020	Board of State Canvassers declares whether an initiative petition is sufficient or insufficient
September 4, 2020	Board of State Canvassers must assign numerical designation and approve ballot wording for all statewide proposals
September 21, 2020	Printed ballots must be made available for delivery to overseas and military voters
November 3, 2020	General election

II

A

SawariMedia "is a coalition of like-minded individuals who work together to educate and promote their political views in the public arena." (Decl. of Amani Sawari, owner and manager of SawariMedia, at ¶2, ECF No. 2, PageID.66.) In the "summer of 2019," SawariMedia media began planning to place an initiative on Michigan's 2020 general election ballot pursuant to the process described above. (Id. at ¶4, PageID.66.) That initiative seeks "to allow all [Michigan] prisoners regardless of the date on which they were sentenced, the right to earn time off their sentences by incentivizing good behavior, academic and professional achievement." See http://mprca.info/petition.

SawariMedia has "hired campaign staff" and has been "diligently campaigning" in support of the initiative for nearly a year. (Sawari Decl. at ¶4, ECF No. 2, PageID.66.² ) It has, among other things, "purchased a website devoted to the initiative, hosted several town-hall meetings [related to] the initiative, conducted multiple training sessions across the state for canvassers of the [initiative], and purchased more than thirty-four thousand (34,000) copies of the [initiative's ballot] petition." (Id. ) It has also "implemented a plan to collect the [required] number of signatures" so that the initiative qualifies to be placed on the November 2020 general election ballot. (Id. at ¶6, PageID.67.) SawariMedia formally filed its ballot initiative petition with Defendant Michigan Secretary of State on January 16, 2020, and it began collecting signatures as of that date.

B

By early March, SawariMedia appeared to be well on its way to collecting a sufficient number of signatures to place its initiative on the November 2020 general election ballot. At that time, it had "collected approximately two-hundred fifteen thousand (215,000) valid signatures" in support of the initiative – an average of over 22,000 per week. (Id. at ¶¶ 3, 7, PageID.66-67.) And it had nearly two and a half months to collect the remaining 125,000 signatures that it needed under Michigan law. But then, the world changed.

On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of the COVID-19 coronavirus in Michigan.³ Governor Whitmer declared a "State of Emergency" that same day. The State of Emergency executive order recognized that COVID-19 "can easily spread from person to person" and could "result in serious illness or death."⁴ As the virus began to spread rapidly across the State (and country), this Court closed to the public. Sports leagues stopped holding games. Churches, synagogues, and mosques stopped holding in-person services. And the federal government issued a series of recommended guidelines to "slow the spread" of the virus. Large gatherings of people stopped taking place, and citizens were urged not to leave their homes and not to allow others (even family) to visit their homes.

At this same time, Governor Whitmer began issuing a series of executive orders to require "social distancing" and mitigate the spread of the virus in Michigan. These executive orders included:

• A March

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