Judge Stephanie Davis of the U.S. District Court (Eastern District of Michigan) granted a preliminary injunction in Priorities USA, et al. v. Dana Nessel, Case No. 19-13341, preventing enforcement of the Voter Transportation Law (MCL 168.931(1)(f) for the November 2020 presidential election. The judge, however, refused to grant a preliminary injunction preventing enforcement of the Absentee Ballot Organizing Ban (MCL 168.759(4), (5) and (8)).
Priorities USA, joined by Rise Inc. and the Detroit/Downriver Chapter of the A. Philip Randolph Institute (DAPRI), all nonprofit organizations, filed this action in federal court preventing the enforcement of these statutes. These groups participate in voter registration and get-out-the-vote activities which also involve giving rides to voters to the polls. They contend that the Absentee Ballot Organizing Ban and the Voter Transportation Ban are unconstitutionally vague and overbroad, violate their First and Fourteenth Amendment rights to free speech and association, and violate the federal voting rights act.
The text of the Voter Transportation Law provides:
- “A person shall not 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.” MCL 168.931(1)(f). A violation of this law can result in a misdemeanor conviction.
The Plaintiffs claim that this law limits options for organizations seeking to transport voters in Michigan. They assert that “[p]roviding rides to the polls is a key organizing tactic for political and advocacy organizations like plaintiffs, as it helps to encourage voters to participate in the political process and helps communities traditionally underrepresented at the polls build their political power.” The U.S. District Court agreed, finding that enforcing the statute “would impair plaintiffs’ ability to transport voters to the polls and to spend money to do so, which is contrary to federal election law…”. Congress implemented a statutory scheme to give citizens the right to spend money on transporting voters to the polls, but this is completely contradicted by Michigan law. There is a strong public interest in allowing every registered voter to cast a ballot and the November presidential election is only weeks away. Therefore, the preliminary injunction is appropriate.
However, the Plaintiffs are not successful in the second part of their claim. The text of the Absentee Ballot Organizing Ban provides:
- “An application for an absent voter ballot under this section may be made in any of the following ways (MCL 768.759(3)):”
- (a) By a written request signed by the voter.
- (b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.
- (c) On a federal postcard application.
- “An applicant for an absent voter ballot shall sign the application. A clerk or assistant clerk shall not deliver an absent voter ballot to an applicant who does not sign the application. A person shall not be in possession of a signed absent voter ballot application except for the applicant; a member of the applicant’s immediate family; a person residing in the applicant’s household; a person whose job normally includes the handling of mail, but only during the course of his or her employment; a registered elector requested by the applicant to return the application; or a clerk, assistant of the clerk, or other authorized election official. A registered elector who is requested by the applicant to return his or her absent voter ballot application shall sign the certificate on the absent voter ballot application.” MCL 168.759(4).
- “The clerk of a city or township shall have absent voter ballot application forms available in the clerk’s office at all times and shall furnish an absent voter ballot application form to anyone upon a verbal or written request.” MCL 168.759(5).
- “A person who is not authorized in this act and who both distributes absent voter ballot applications to absent voters and returns those absent voter ballot applications to a clerk or assistant of the clerk is guilty of a misdemeanor.” MCL 168.759(8).
Based on these laws, there are two ways to apply for an absentee voter ballot: a written request signed by the voter OR on an absentee voter ballot application from provided for that purpose and signed by the voter. The Plaintiffs assert these restrictions inhibit their ability to organize around absentee voting. The U.S. District Court disagreed, finding that these statutes do not prevent the Plaintiffs from educating voters about the ease and convenience of absentee voting, but only prohibit them “from requesting or soliciting to return signed absentee voter applications.” In fact, the Michigan Secretary of State intends to send an application for an absentee voter ballot to every registered voter anyway. Therefore, there is no harm to the Plaintiffs for not granting the preliminary injunction with respect to the Absentee Ballot Organizing Ban because it does not impair or threaten the right to vote absentee.
The preliminary injunction with respect to the Voter Transportation Law prevents the police and prosecutor from pushing the misdemeanor penalties of up to 90 days in jail or a fine up to $500.00 for violating this statute. This is a boon to liberal candidates (and the Democratic Party in general) who can mobilize and bring to the polls those minorities and disadvantaged groups in poor areas lacking public transportation. Ironically, the preliminary injunction came from a district court judge appointed by President Trump, a Republican president.
If you have any questions about Michigan election law or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.