MICHIGAN ALLIANCE FOR RETIRED AMERICANS, DETROIT/DOWNRIVER CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE, CHARLES ROBINSON, GERARD MCMURRAN, аnd JIM PEDERSON, Plaintiffs-Appellees, v SECRETARY OF STATE and ATTORNEY GENERAL, Defendants, and SENATE and HOUSE OF REPRESENTATIVES, Intervening Defendants-Appellants, and REPUBLIC NATIONAL COMMITTEE and MICHIGAN REPUBLICAN PARTY, Proposed Intervening Defendants.
No. 354993
STATE OF MICHIGAN COURT OF APPEALS
October 16, 2020
FOR PUBLICATION. Court of Claims LC No. 20-000108-MM.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: CAMERON, P.J., and BOONSTRA, and GADOLA, JJ.
Intervening defendants, the Senate and the House of Representatives (collectively, “the Legislature“), appeal by right a September 30, 2020 opinion and order of the Court of Claims, which granted declaratory and injunctive relief in favor of plaintiffs with respect to the receipt deadline for absentee ballots and ballot-handling restrictions that limit who may lawfully possess another voter‘s ballot. For the reasons stated in this opinion, we reverse.
I. FACTS AND PROCEDURE
In June 2020, plaintiffs filed a complaint against defendant Sеcretary of State (“Secretary“) and defendant Attorney General, seeking declaratory and injunctive relief related to the handling and counting of absent voter ballots for the 2020 general election.1 Plaintiffs later filed an amended complaint, asserting facial and as-applied challenges to the constitutionality of three laws: (1) a deadline requiring that
Plaintiffs later requested that the Court of Claims issue a preliminary injunction, and the Court of Claims did so in part. Thereafter, plaintiffs and defendants filed competing motions for summary disposition. Ultimately, the Court of Claims granted partial relief to plaintiffs, concluding that plaintiffs had established two as-applied constitutional violations of plaintiffs’ right to vote absentee in the 2020 general election. The Court of Claims issued an order enjoining the operation of two election laws: the deadline for mail-in absent voter ballots and the restriction limiting who can lawfully possess, solicit, and deliver another person‘s ballots. The Court of Claims ordered that mail-in ballots received after the рolls closed on election night would now be eligible to be counted up to 14 days later, provided that “the ballot is postmarked before election day” and received by the clerk within 14 days of the election.2 The Court of Claims also suspended the ballot-handling restrictions regarding third parties possessing and delivering absentee ballots as long as the third party‘s conduct occurs from 5:01 p.m. on the Friday before the 2020 general election until polls close, so long as the absent voter gives his or her approval. The Court of Claims rejected plaintiffs’ final claim that the State was constitutionally required to provide pre-paid postage for absent voters to use after completing their ballots and granted summary disрosition in favor of defendants with respect to this claim only.
After defendants elected not to appeal, the Legislature, which had appeared as amicus in the Court of Claims proceedings, successfully intervened and filed the instant appeal. The Republican National Committee and the Michigan Republican Party appear on appeal as amici.3
II. LEGAL BACKGROUND
Michigan law formerly required voters to designate one of six reasons to support a request to vote absentee. In November 2018, Michigan voters approved Proposal 3, which bestowed a constitutional right to
Under Michigan Election Law, registered voters may apply for an absentee ballot by completing an application to receive an absentee ballot. The application from an already-registered voter must be made before “4 p.m. on the day before the election.”
By law, an absent voter ballot contains the following instructions to the voter: (1) read the voting instructions; (2) after voting, place the ballot in the secrecy sleeve or fold it to conceal the votes; (3) place the ballot in the return envelope and seal it; (4) sign and date the envelope and, if assistance in voting was required, mark that on the envelope; and (5) use one of four methods to deliver the return envelope to the clerk.
Step Five in the аbove instructions provides four methods of delivering completed absent voter ballots to the clerk. First, voters may deposit ballots in “the United States mail or with another public postal service, express mail service, parcel post service, or common carrier.”
Notably, if an absent voter‘s ballot is returned to the clerk‘s office in an unauthorized manner, the ballot will not be “invalidated solely because the delivery to the clerk was not in compliance” with the statutes.
III. ANALYSIS
A. STANDING
Plaintiffs argue that the Legislature does not having standing to file an appeal in this matter. We disagree.
Whether a party has standing is a question of law subject to review de novo. Groves v Dept of Corr, 295 Mich App 1, 4; 811 NW2d 563 (2011). In League of Women Voters of Mich v Secretary of State (League I), ___ Mich App ___; ___ NW2d ___ (Docket Nos. 350938, 351073, issued January 27, 2020), slip op at 6, lv pending, this Court observed as follows:
[T]his Court has jurisdiction over appeals by right “filed by an aggrieved party.” MCR 7.203. Black‘s Law Dictionary (11th ed) defines “aggrieved party” as “a party entitled to a remedy; esp. a party whose personal, pecuniаry, or property rights have been adversely affected by another person‘s actions or by a court‘s decree or judgment.” “To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.” Federated Ins Co v Oakland Co Rd Comm‘n, 475 Mich 286, 291; 715 NW2d 846 (2006).
* * *
” ‘Standing is the legal term used to denote the existence of a party‘s interest in the outcome of the litigation; an interest that will assure sincere and vigorous advocacy.’ ” Allstate Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993) (citations omitted).
Furthermore, our Supreme Court has ruled in pertinent part that “a litigant on appeal must demonstrate an
Here, plaintiffs argue that the Legislature has not met its heavy burden of establishing that it has standing on appeal. In so arguing, however, plaintiffs overlook the Legislature‘s interests given that the Legislature is “an entity that certainly has an interest in defending its own work.” League II, ___ Mich ___, ___; 948 NW2d 70 (Docket No. 161671, issued September 11, 2020), slip op at 7 n 4 (MCCORMACK, C.J., dissenting). This is particularly the case here given that the Legislature is defending the constitutionality of several of its statutes, as well as the manner in which future elections are to be conducted in this State. The Legislature—which is a body that is subject to these election procedures and as elected officials of the citizеns of this State—undoubtedly has a significant interest in the instant appeal. Indeed, it is difficult to envision interests that would assure more sincere and vigorous advocacy.
Although plaintiffs oppose the Legislature‘s standing on the basis of League I, we conclude that case is distinguishable. The Legislature in League I sought to pursue—as a plaintiff—a declaratory judgment to enforce particular legislation; in doing so, the Legislature was “plainly challenging the actions of members of the Executive Branch.” League I, ___ Mich App at ___; slip op at 4, 8. In this case, however, the Legislature sought to intervene after defendants, constitutional officers within the Executive Branch, declined to appeal the Court of Claims‘s decision. The Legislature, as elected representatives of the citizens of Michigan, is essentially taking the place of defendants in this case to ensure an actual controversy with robust contrary arguments. Indeed, the Court of Claims initially denied the Legislature‘s motion to intervene and only permitted intervention after the Executive Branch abdicated its role in this litigation. As noted by this Court in League of Women Voters of Mich v Secretary of State (League II), ___ Mich App ___; ___ NW2d ___ (issued July 14, 2020, Docket No. 353654), slip op at 5,
just as a legislative body cannot legitimately enact a statute that is repugnant to the Constitution, nor can an executive branch official effectively declare a properly enacted law to be void by simply conceding the point in litigation. To vest such power in an official, it would effectively grant such official the power to amend the Constitution itself.
For these reasons, we conclude that the Legislature has standing to appeal in this matter.
Amici also challenge plaintiffs’ standing to bring suit, arguing that plaintiffs have not shown a special injury. However, plaintiffs in this action include the Michigan Alliance for Retired Persons (“MARP“), which is a nonprofit corporation with over 200,000 members, many of whom are elderly and/or disabled, and the Detroit/Downriver Chapter of the A. Philip Randolph Institute, the senior constituency group of the AFL-CIO. The individual plaintiffs, Charles Robinson, Gerard McMurran, and Jim Pederson, are all members of MARP, are over the age of 61, and are retired union members. Given the exigent circumstances here and given thаt plaintiffs have asserted their members’ status as elderly or disabled individuals—some of whom have underlying health conditions that make them more vulnerable to COVID-19—we assume without deciding that plaintiffs have standing. See House of Representatives v Governor, ___ Mich App ___; ___ NW2d ___ (Docket No. 353655, issued August 21, 2020), slip op at 9
B. DECLARATORY RELIEF
The Legislature argues that the Court of Claims erred by granting summary disposition in favor of plaintiffs on its declaratory action. We agree.
This Court reviews de novo a trial court‘s decision on a motion for summary disposition in an action seeking declaratory relief. League I, ___ Mich Apр at ___; slip op at 6. The constitutionality of a statute presents a question of law to which this Court applies a de novo standard of review. GMAC LLC v Treasury Dep‘t, 286 Mich App 365, 372; 781 NW2d 310 (2009).
The Legislature first argues that the Court of Claims should have analyzed plaintiffs’ declaratory claims as a facial attack on the election laws because plaintiffs’ allegations do not amount to an as-applied challenge. An “as-applied” challenge “considers the specific application of a facially valid law to individual facts,” while a “facial” constitutional challenge considers the plain language of the challenged provision (i.e., on its face). In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444 (2007) (citation omitted). In other words, a facial challenge is a claim that the law is “invalid in toto—and therefore incapable of any valid application . . . .” Steffel v Thompson, 415 US 452, 474; 94 S Ct 1209; 39 L Ed 2d 505 (1974). In contrast, “[a]n as-applied challenge, to be distinguished from a facial challenge, alleges a present infringement or denial of a specific right or of a particular injury in process of actual execution of government action.” Bonner v City of Brighton, 495 Mich 209, 223 n 27; 848 NW2d 380 (2014) (internal quotation marks and citation omitted).
Frequently, as here, litigants describe their challenges as both facial and as-applied challenges. This is unsurprising given that elements of the two can overlap. See Citizens United v Federal Election Comm, 558 US 310, 331; 130 S Ct 876, 893; 175 L Ed 2d 753 (2010) (stating that “the distinction between facial and as-applied challenges is not so well defined . . . .“). However, as a general rule, substance prevails over the particulаr wording used in a complaint. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 481; 642 NW2d 406 (2002). Thus, a litigant‘s labels are not what matter.
In John Doe No 1 v Reed, 561 US 186, 194; 130 S Ct 2811, 2817; 177 L Ed 2d 493 (2010), the Supreme Court examined whether a claim was a facial challenge or an as-applied challenge. In analyzing the issue, the Reed Court examined the substance of the plaintiffs’ claim, which contained elements of a facial challenge because it was not limited to the plaintiffs’ specific case, but also reflected an as-applied challenge because it did not seek to strike the challenged statute in its entirety. Id. The Reed Court then examined the plaintiffs’ requested relief: an injunction barring the Secretary of State “from making referendum petitions available to the public.” Id. The Reed Court declared that the label attached to the claim was not dispositive; rather, the Court held that the deciding factor was that the relief sought by the plaintiffs would “reach beyond the particular circumstances of these plaintiffs.” Id. The Reed Court ruled that the plaintiffs must “satisfy our standards for a facial challenge to the extent of that reach.” Id. (citing United States v Stevens, 559 US 460, 472-473; 130 S Ct 1577, 1587; 176 L Ed 2d 435 (2010)).
On casual inspection, plaintiffs’ allegations appear to be as-applied challenges because they reference plaintiffs’ particular vulnerability given the facts—COVID-19 and an alleged mail slowdown—as infringements on their right to vote only in the November 2020 general election. A reading of plaintiffs’ request for relief, however, brings into focus the breadth of their requests, which are not confined only to plaintiffs. Specifically, the relief sought by plaintiffs would apply to all Michigan votеrs who choose to cast their ballots by mail —not just to the elderly and disabled members of plaintiffs’ organizations. Therefore, the ballot deadline relief extends well beyond the circumstances of the individual plaintiffs and their organizations and would reach all Michigan voters who, for whatever reason, would benefit from more time in which to mail their ballot. Furthermore, lifting the restrictions and criminal penalties concerning who may handle absent voter ballots would apply to all Michigan voters as long as the conduct in question occurs after 5:00 p.m. on the Friday before the election. While plaintiffs’ challenge arises only in relation to a specific fact-pattern—the November 3, 2020 election during the COVID-19 pandemic and slow mail delivery—the relief plaintiffs seek applies to every Michigan absent voter. Therefore, the substance of plaintiffs’ amended complaint is a facial challenge of the relevant statutes, and the Court of Claims erred by failing to analyze the claims accordingly.7
That said, we must next consider whether plaintiffs were entitled to summary disposition on their declaratory action. As already stated, plaintiffs alleged that the ballot receipt deadline required by
The guiding framework for an examination of the constitutionality of a statute begins with the presumption that statutes are constitutional, and “courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 6; 658 NW2d 127 (2003). “A party challenging the facial constitutionality of a statute faces an extremely rigorous standard, and must show that no set of circumstances exists under
With regard to plaintiffs’ arguments concerning the ballot-receipt deadline, we need not analyze this point. In this Court‘s divided opinion in League II, this Court held that the 8:00 p.m. ballot-receipt deadline survives a facial challenge and does not violate
Although this Court in League II did not address the statutory provisions that provide ballot-handling restrictions, we conclude that
In [In re Request for Advisory Opinion, 479 Mich at 35] . . ., our Supreme Court held that “the Michigan Constitution does not compel that every election regulation be reviewed under strict scrutiny.” The Court recognized that in Burdickv Takushi, 504 US 428; 112 S Ct 2059; 119 L Ed 2d 245 (1992), the United States Supreme Court “rejected the notion that every election law must be evaluated under strict scrutiny analysis.” Id. at 20-21. The Court stated that the Burdick Court “recognized that ‘to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie thе hands of States seeking to assure that elections are operated equitably and efficiently.’ ” Id. at 21, quoting Burdick, 504 US at 433. [League II, ___ Mich App at ___; slip op at 14.]
Indeed, although “the right to vote is an implicit fundamental political right that is preservative of all rights,” that right is not absolute. Promote the Vote v Secretary of State, ___ Mich App ___; ___ NW2d ___ (Docket No. 353977, issued July 20, 2020) (quotation marks and citations omitted), slip op at 13. “[S]tates have a compelling interest in preserving the integrity of their election processes[.]” In re Request for Advisory Opinion, 479 Mich at 19. “In order to protect that compelling interest, a state may enact generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process[.]” Id. at 19-20 (quotation marks and citation omitted). Our Supreme Court has described the Burdick test as balancing between protеcting the citizens’ right to vote and protecting against fraudulent voting. Id. at 35. It has commented as follows regarding application of the Burdick test:
[T]he first step in determining whether an election law contravenes the constitution is to determine the nature and magnitude of the claimed restriction inflicted by the
election law on the right to vote, weighed against the precise interest identified by the state. If the burden on the right to vote is severe, then the regulation must be “narrowly drawn” to further a compelling state interest. However, if the restriction imposed is reasonable and nondiscriminatory, then the law is upheld as warranted by the important regulatory interest identified by the state. The United States Supreme Court has stressed that each inquiry is fact and circumstance specific, because “[n]o bright line separates permissible election-related regulation from unconstitutional infringements[.]” [In re Request for Advisory Opinion, 479 Mich at 21-22 (citation omitted)].
In this case, the Legislature argues that the ballot-handling restrictions are intended to combat voter fraud. “There is no question about the legitimacy or importance of the State‘s interest in counting only the votes of eligible voters . . . . While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.” Crawford v Marion Cty Election Bd, 553 US 181, 196; 128 S Ct 1610, 1619; 170 L Ed 2d 574 (2008).
Indeed, designing adjustments to our election integrity laws is the responsibility of our elected policy makers, not the judiciary. See
Although record evidence before the Court of Claims supported that voter fraud is very rare, our Supreme Court has ruled that “there is no requirement that the Legislature ‘prove’ that significant in-person voter fraud exists before it may permissibly act to prevent it.” In re Request for Advisory Opinion, 479 Mich at 26. Even so, the Secretary acknowledges in its brief on appeal that voter fraud has occurred in the past in relation
However, the State‘s interest in protecting against voter fraud must be balanced against the voter‘s interest in the right to vote. The Court of Claims concluded that because the clerk‘s office was not required to pick up and deliver ballots after 5:00 p.m. on the Friday immediately preceding the election, there was an unacceptable risk that during this brief time before the election that some home-bound absent voters would be disenfranchised by a voter fraud provision that limits whо the voters may entrust to possess and deliver their ballots. Thus, the question before this Court is whether the requirement that clerks provide voter assistance only until 5:00 p.m. on the Friday before an election, in addition to the COVID-19 pandemic and the asserted delivery slowdown at the United States Postal Service (“USPS“), imposes an unconstitutional burden on the right to vote absentee. We conclude that it does not. First, even with the 5:00 p.m. limit, voters are not deprived of the choice to vote absentee; they retain all the options of delivering their ballot in person to the clerk, using one of over 1,000 drop boxes in the state, using community satellite voter centers, if available, or relying on any family member or household resident to do so.10 Additionаlly, as pointed out by defendants, the clerk is required to assist voters with returning their ballots if the voters request such assistance before 5:00 p.m. on the Friday before an election, and may continue to provide door-to-door delivery service for qualified absent voters after that time. See
Furthermore, even if plaintiffs’ claims could be considered an as-applied challenge, those claims do not survive. In light of the COVID-19 pandemic, the Court of Claims concluded that returning the ballot by mail is the “only realistic option” for those with underlying health conditions who wish to vote absentee. That finding is unsupported given additional ballot delivery options available to absentee voters. Additionally, as pointed out by amici, the pandemic and resulting USPS mail delivery slowdowns are not attributable to the State. Although those factors may complicate plaintiffs’ voting process, they do not automatically amount to a loss of the right to vote absentee. The letter from USPS General Counsel Thomas J. Marshall, which indicated that the law creates an “incongruity” and a “mismatch” between mail delivery standards and deadlines for casting mail-in ballots in Michigan, is not dispositive. The cited incongruity is not dependent on the COVID-19 pandemic or the USPS slowdown; Marshall‘s conclusion was on the basis of the USPS ideal delivery rates rather than those experienced during COVID-19. The fact that the Legislature drafted the statutes without accounting for USPS deadlines does not mean the statutes are unconstitutional as applied. Where plaintiffs retain other options for delivering their completed ballots, they have not lost their constitutional right to vote absentee.
C. INJUNCTIVE RELIEF
The Legislature next challenges the Court of Claims‘s entry of the preliminary and permanent injunctions. This Court reviews for an abuse of discretion a trial court‘s decision to grant injunctive relief. Taylor v Currie, 277 Mich App 85, 93; 743 NW2d 571 (2007); Schadewald v Brule, 225 Mich App 26, 39, 570 NW2d 788 (1997). “A court abuses its discretion when a decision falls outside the range of reasonable and principled outcomes.” House of Representatives, ___ Mich App at ___; slip op at 20.
The Legislature first argues that the Court of Claims‘s “preliminary injunction analysis was deeply flawed” and that this Court should reverse the Sеptember 18, 2020 opinion and order. However, we conclude that this argument is moot. “The objective of a preliminary injunction is to maintain the status quo pending a final hearing regarding the parties’ rights.” Alliance for the Mentally Ill of Mich v Dep‘t of Community Health, 231 Mich App 647, 655-656; 588 NW2d 133 (1998). In this case, the Court of Claims granted plaintiffs’ request for a preliminary injunction in its September 18, 2020 opinion and order. Thereafter, on September 30, 2020, the Court of Claims granted a permanent injunction. Because a permanent injunction was entered after the Court of Claims held “a final hearing regarding the parties’ rights,” the Legislature‘s challenge to the preliminary injunction is moot and need not be addressed. See id. Nonetheless, we have briefly considered the argument and conсlude that the Court of Claims abused its discretion by entering the preliminary injunction given plaintiffs’ failure to establish a likelihood of success on the merits and plaintiffs’ failure to establish irreparable harm. See Michigan AFSCME Council 25 v Woodhaven-Brownstown School District (On Remand), 293 Mich App 143, 148; 809 NW2d 444 (2011) (citation omitted).
The Legislature also challenges the Court of Claims‘s entry of the
We reverse and remand for the immediate entry of summary disрosition in favor of defendants. This opinion has immediate effect. MCR 7.215(F). We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Mark T. Boonstra
/s/ Michael F. Gadola