SawariMedia, LLC v. Gretchen Whitmer ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAWARIMEDIA, LLC; DEBORAH PARKER; JUDY ┐
KELLOGG; PAUL ELY, │
Plaintiffs-Appellees, │
│
> No. 20-1594
v. │
│
│
GRETCHEN WHITMER, Governor of Michigan; │
JOCELYN BENSON, Secretary of State of Michigan; │
JONATHAN BRATER, Director of the Michigan Bureau │
of Elections, │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:20-cv-11246—Matthew F. Leitman, District Judge.
Decided and Filed: July 2, 2020
Before: NORRIS, CLAY, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON MOTION: Heather S. Meingast, Erik A. Grill, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellants.
_________________
ORDER
_________________
This appeal is another in a series of cases concerning the interaction between several
states’ stay-at-home orders and the signature requirements needed to gain access to the ballot.
No. 20-1594 SawariMedia, LLC, et al. v. Whitmer, et al. Page 2
Plaintiffs are proponents of a criminal-justice reform initiative that they seek to place on the
ballot for the 2020 Michigan general election. Defendants include the governor and other state
officials, who continued to strictly enforce the signature requirement for initiatives even after the
governor had issued an order requiring most Michigan residents to remain in their homes as part
of the fight against the COVID-19 pandemic.
When officials told Plaintiffs that the signature requirement would still be enforced
against them, they filed suit in the U.S. District Court for the Eastern District of Michigan,
alleging that the combination of the stay-at-home order and the signature requirement violates
the First Amendment by creating a severe restriction on their access to the ballot. The district
court agreed and enjoined the strict enforcement of the signature requirement. SawariMedia
LLC v. Whitmer (SawariMedia I), No. 20-CV-11246, 2020 WL 3097266 (E.D. Mich. June 11,
2020). And while Defendants proposed a compromise remedy that included a several-weeks
extension of the filing deadline, the district court rejected this proposal as insufficient.
Defendants then appealed and now ask for an emergency stay.
When considering a motion to stay, we balance four “interrelated” factors: “(1) the
likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the
likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that
others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.”
In re Flint Water Cases, 960 F.3d 820, 825 (6th Cir. 2020) (quoting Michigan State A. Philip
Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016)). “These factors are not
prerequisites that must be met, but are interrelated considerations that must be balanced
together.” Serv. Employees Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per
curiam) (quoting Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d
150, 153 (6th Cir. 1991)). Nevertheless, we may not grant a stay “where the movant presents no
likelihood of merits success.” Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020) (quoting
La.-Pac. Corp. v. James Hardie Bldg. Prod., Inc., 928 F.3d 514, 517 (6th Cir. 2019)). Because
the state is the moving party, its own potential harm and the public’s interest merge into a single
No. 20-1594 SawariMedia, LLC, et al. v. Whitmer, et al. Page 3
factor. See Nken v. Holder, 556 U.S. 418, 435 (2009). As the moving party, the state carries
“the burden of showing it is entitled to a stay.” DV Diamond Club of Flint, LLC v. Small Bus.
Admin., 960 F.3d 743, 746 (6th Cir. 2020) (order).
Defendants claim that two errors by the district court demonstrate a likelihood of success
on the merits of their appeal. First, they argue that the district court erred in finding that the
burden on Plaintiffs’ access to the ballot was “severe” under the Anderson-Burdick framework,
which governs First Amendment challenges to ballot-access restrictions. See Anderson v.
Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). Second, they say
that even if the signature requirement and filing deadline are unconstitutional as applied to
Plaintiffs, their proposed extension of the deadline in the district court was enough to remedy any
infirmity.
We disagree on both fronts. First, with respect to the burden imposed on Plaintiffs’
access to the ballot, the restrictions at issue here are identical to those in Esshaki v. Whitmer, No.
20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) (order), which this Court found to be severe,
id. at *1. In response, the state tries to argue that Thompson v. DeWine, 959 F.3d 804 (6th Cir.
2020) (per curiam), a case that stayed an injunction of Ohio’s initiative signature requirements, is
more applicable. But Thompson distinguished Esshaki almost entirely based on differences
between Michigan’s and Ohio’s stay-at-home orders. Id. at 809–10. Defendants’ arguments
thus were expressly rejected in Esshaki and implicitly rejected in Thompson; against this
backdrop, they cannot show a likelihood of success on appeal.
Second, Defendants have failed to show a likelihood that the district court abused its
discretion by rejecting their proposed remedy. In the district court, Defendants proposed
extending the petition deadline to July 6. Counting from the original May 27 deadline, they
considered this to be a forty-day extension. The district court, however, counted from its June 11
order issuing the preliminary injunction, and considered this to be only a twenty-five-day
extension. But even if Defendants were right to count from the May 27 deadline, their proposed
July 6 deadline would not be a forty-day extension. The governor’s stay-at-home order remained
No. 20-1594 SawariMedia, LLC, et al. v. Whitmer, et al. Page 4
in effect from May 27 until June 1. See Mich. E.O. 2020-96 § 3 (May 21, 2020); Mich. E.O.
2020-100 § 3 (May 22, 2020); Mich. E.O. 2020-110 § 17 (June 1, 2020). Defendants were still
unconstitutionally burdening Plaintiffs’ First Amendment rights during that period, so the July 6
deadline would grant, at best, a thirty-five-day extension. Defendants do not argue that the
district court would have been obliged to accept a proposed thirty-five-day extension.
Accordingly, they have failed to demonstrate they are likely to prevail on this claim. Because
Defendants have shown no likelihood that they will prevail on appeal on either claim, they
cannot meet their burden of proving entitlement to a stay. Daunt, 956 F.3d at 421–22.1
Finally, we note that Defendants have asked for initial en banc review before this Court
in order to consider their argument that the Anderson-Burdick framework should not apply to
signature requirements for ballot initiatives, a position they admit is currently foreclosed by
panel precedent. See, e.g., Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019) (applying
Anderson-Burdick to ballot initiative restrictions), cert. denied, No. 19-974, 2020 WL 2621728(U.S. May 26, 2020); Comm. to Impose Term Limits on Ohio Supreme Court & to Preclude
Special Legal Status for Members & Emps. of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d
443, 448 (6th Cir. 2018) (same). But cf. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082,
1099 (10th Cir. 2006) (“Although the First Amendment protects political speech incident to an
initiative campaign, it does not protect the right to make law, by initiative or otherwise.”);
Marijuana Policy Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002) (finding that “the
legislative act” of using the ballot initiative process “implicates no First Amendment concerns”).
We take no position on the merits of that petition, which is currently under consideration by the
en banc Court.
1
Defendants’ motion briefly defends its first proposed remedy of allowing Plaintiffs’ currently collected
signatures to count toward the 2022 election without expressly raising this as an alternative ground for a stay. For
the same reasons articulated by the district court, this proposal does nothing to remedy any constitutional infirmity
caused by restricting access to the 2020 ballot. See SawariMedia LLC v. Whitmer (SawariMedia II), No. 20-CV-
11246, 2020 WL 3447694, at *5 (E.D. Mich. June 24, 2020).
No. 20-1594 SawariMedia, LLC, et al. v. Whitmer, et al. Page 5
For the reasons stated above, Defendants’ motion for a stay pending appeal is denied.
We retain jurisdiction over this appeal but direct the district court to address any further remedy
proposed by Defendants by no later than July 15, 2020. If Defendants fail to propose a remedy
that resolves the constitutional infirmity by that date, they will be precluded from enforcing the
petition deadline against Plaintiffs, pending further review of any proposed remedy by this
Court.
ENTERED BY ORDER OF THE COURT
___________________________________
Deborah S. Hunt, Clerk