Mich. Republican Party v. Jocelyn Benson

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0117p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANTHONY DAUNT, TOM BARRETT, AARON BEAUCHINE, ┐
KATHY BERDEN, STEPHEN DAUNT, GERRY │
HILDENBRAND, GARY KOUTSOUBOS, LINDA LEE │
TARVER, PATRICK MEYERS, MARIAN SHERIDAN, MARY │
SHINKLE, NORM SHINKLE, PAUL SHERIDAN, BRIDGET │
BEARD, and CLINT TARVER (19-2377); MICHIGAN > Nos. 19-2377/2420
│
REPUBLICAN PARTY, LAURA COX, TERRI LYNN LAND,
│
SAVINA ALEXANDRA ZOE MUCCI, DORIAN THOMPSON,
│
and HANK VAUPEL (19-2420),
│
Plaintiffs-Appellants, │
│
v. │
│
│
JOCELYN BENSON, in her official capacity as Michigan │
Secretary of State; COUNT MI VOTE, doing business as │
Voters Not Politicians, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
Nos. 1:19-cv-00614 (19-2377); 1:19-cv-00669 (19-2420)—Janet T. Neff, District Judge.
Argued: March 17, 2020
Decided and Filed: April 15, 2020
Before: MOORE, GILMAN, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: John J. Bursch, BURSCH LAW, Caledonia, Michigan, for Appellants in 19-2377.
Gary P. Gordon, DYKEMA GOSSETT PLLC, Lansing, Michigan, for Appellants in 19-2420.
Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee Benson. Paul M. Smith, CAMPAIGN LEGAL CENTER, Washington,
D.C., for Appellee Count MI Vote. ON BRIEF: John J. Bursch, BURSCH LAW, Caledonia,
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 2
Michigan, Jason Torchinsky, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC,
Warrenton, Virginia, for Appellants in 19-2377. Gary P. Gordon, Jason T. Hanselman, Scott A.
Hughes, DYKEMA GOSSETT PLLC, Lansing, Michigan, Charles R. Spies, Robert L. Avers,
DICKINSON WRIGHT PLLC, Lansing, Michigan, for Appellants in 19-2420. Heather S.
Meingast, Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee Benson. Paul M. Smith, Mark P. Gaber, CAMPAIGN LEGAL
CENTER, Washington, D.C., Graham K. Crabtree, FRASER TREBILCOCK DAVIS &
DUNLAP, P.C., Lansing, Michigan, Annabelle E. Harless, CAMPAIGN LEGAL CENTER,
Chicago, Illinois, for Appellee Count MI Vote. Mark Brewer, GOODMAN ACKER, P.C.,
Southfield, Michigan, Zachary D. Tripp, WEIL, GOTSHAL & MANGES LLP, Washington,
D.C., Michael B. Kimberly, MCDERMOTT WILL & EMERY, Washington, D.C., for Amici
Curiae.
MOORE, J., delivered the opinion of the court in which GILMAN, J., joined.
READLER, J. (pp. 32–44), delivered a separate opinion concurring in the judgment.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. These two appeals arise from challenges
filed by individual plaintiffs and the Michigan Republican Party to Michigan’s new Independent
Citizens Redistricting Commission. The Commission was established by ballot initiative in the
2018 Michigan general election. The first lawsuit was filed by Michigan citizens who allege that
they are unconstitutionally excluded from serving on the Commission due to its eligibility
criteria, which prohibit eight classes of individuals with certain current or past political ties from
serving as a commissioner. The second lawsuit was filed by the Michigan Republican Party and
individual plaintiffs, making the same allegation as the first lawsuit and raising other First
Amendment allegations regarding the Commission’s selection process, its composition, and its
restrictions on the commissioners’ ability to speak publicly about redistricting matters.
The plaintiffs in both cases moved for preliminary injunctions against the implementation
of the Commission. The district court denied these motions, and the plaintiffs have appealed.
For the reasons stated below, we AFFIRM the judgment of the district court.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 3
I. BACKGROUND
A. Establishment of the Commission
On November 6, 2018, Michigan voters voted in favor of Proposal 18-2 on the general
election ballot. MICH. CONST., art. IV, § 6. Proposal 18-2 stated the following:
Proposal 18-2
A proposed constitutional amendment to establish a commission of citizens with exclusive
authority to adopt district boundaries for the Michigan Senate, Michigan House of
Representatives and U.S. Congress, every 10 years.
This proposed constitutional amendment would:
• Create a commission of 13 registered voters randomly selected by the Secretary of
State:
o 4 each who self-identify as affiliated with the 2 major political parties; and
o 5 who self-identify as unaffiliated with major political parties.
• Prohibit partisan officeholders and candidates, their employees, certain relatives,
and lobbyists from serving as commissioners.
• Establish new redistricting criteria including geographically compact and
contiguous districts of equal population, reflecting Michigan’s diverse population
and communities of interest. Districts shall not provide disproportionate
advantage to political parties or candidates.
• Require an appropriation of funds for commission operations and commissioner
compensation.
Should this proposal be adopted?
[] YES
[] NO
Michigan Board of State Canvassers, Official Ballot Wording approved by the Board of State
Canvassers, August 30, 2018, Voters Not Politicians, https://www.michigan.gov/documents/sos/
Official_Ballot_Wording_Prop_18-2_632052_7.pdf. This constitutional amendment (the
“Amendment”) took effect on December 22, 2018. MICH. CONST., art. IV, § 6.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 4
B. Structure of the Commission
Article IV, § 6 of the amended Michigan Constitution sets forth the eligibility criteria for
membership on the newly created “independent citizens redistricting commission” (the
“Commission”), as follows:
(1) An independent citizens redistricting commission for state legislative and
congressional districts (hereinafter, the “commission”) is hereby established as a
permanent commission in the legislative branch. The commission shall consist of
13 commissioners. The commission shall adopt a redistricting plan for each of the
following types of districts: state senate districts, state house of representative
districts, and congressional districts. Each commissioner shall:
(a) Be registered and eligible to vote in the state of Michigan;
(b) Not currently be or in the past 6 years have been any of the following:
(i) A declared candidate for partisan federal, state, or local office;
(ii) An elected official to partisan federal, state, or local office;
(iii) An officer or member of the governing body of a national, state, or local
political party;
(iv) A paid consultant or employee of a federal, state, or local elected official
or political candidate, of a federal, state, or local political candidate’s
campaign, or of a political action committee;
(v) An employee of the legislature;
(vi) Any person who is registered as a lobbyist agent with the Michigan
bureau of elections, or any employee of such person; or
(vii) An unclassified state employee who is exempt from classification in state
civil service pursuant to article XI, section 5, except for employees of
courts of record, employees of the state institutions of higher education,
and persons in the armed forces of the state;
(c) Not be a parent, stepparent, child, stepchild, or spouse of any individual
disqualified under part (1)(b) of this section; or
(d) Not be otherwise disqualified for appointed or elected office by this
constitution.
(e) For five years after the date of appointment, a commissioner is ineligible to
hold a partisan elective office at the state, county, city, village, or township
level in Michigan.
Id.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 5
Section 2 of article IV sets forth the process by which the Secretary of State selects
commissioners, as follows:
(a) The secretary of state shall do all of the following:
(i) Make applications for commissioner available to the general public not
later than January 1 of the year of the federal decennial census. The
secretary of state shall circulate the applications in a manner that invites
wide public participation from different regions of the state. The
secretary of state shall also mail applications for commissioner to ten
thousand Michigan registered voters, selected at random, by January 1 of
the year of the federal decennial census.
(ii) Require applicants to provide a completed application.
(iii) Require applicants to attest under oath that they meet the qualifications
set forth in this section; and either that they affiliate with one of the two
political parties with the largest representation in the legislature
(hereinafter, “major parties”), and if so, identify the party with which
they affiliate, or that they do not affiliate with either of the major parties.
(b) Subject to part (2)(c) of this section, the secretary of state shall mail additional
applications for commissioner to Michigan registered voters selected at random
until 30 qualifying applicants that affiliate with one of the two major parties
have submitted applications, 30 qualifying applicants that identify that they
affiliate with the other of the two major parties have submitted applications,
and 40 qualifying applicants that identify that they do not affiliate with either
of the two major parties have submitted applications, each in response to the
mailings.
(c) The secretary of state shall accept applications for commissioner until June 1
of the year of the federal decennial census.
(d) By July 1 of the year of the federal decennial census, from all of the
applications submitted, the secretary of state shall:
(i) Eliminate incomplete applications and applications of applicants who do
not meet the qualifications in parts (1)(a) through (1)(d) of this section
based solely on the information contained in the applications;
(ii) Randomly select 60 applicants from each pool of affiliating applicants
and 80 applicants from the pool of non-affiliating applicants. 50% of
each pool shall be populated from the qualifying applicants to such pool
who returned an application mailed pursuant to part 2(a) or 2(b) of this
section, provided, that if fewer than 30 qualifying applicants affiliated
with a major party or fewer than 40 qualifying non-affiliating applicants
have applied to serve on the commission in response to the random
mailing, the balance of the pool shall be populated from the balance of
qualifying applicants to that pool. The random selection process used by
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 6
the secretary of state to fill the selection pools shall use accepted
statistical weighting methods to ensure that the pools, as closely as
possible, mirror the geographic and demographic makeup of the state;
and
(iii) Submit the randomly-selected applications to the majority leader and the
minority leader of the senate, and the speaker of the house of
representatives and the minority leader of the house of representatives.
(e) By August 1 of the year of the federal decennial census, the majority leader of
the senate, the minority leader of the senate, the speaker of the house of
representatives, and the minority leader of the house of representatives may
each strike five applicants from any pool or pools, up to a maximum of 20 total
strikes by the four legislative leaders.
(f) By September 1 of the year of the federal decennial census, the secretary of
state shall randomly draw the names of four commissioners from each of the
two pools of remaining applicants affiliating with a major party, and five
commissioners from the pool of remaining non-affiliating applicants.
Id. Commissioners hold office until the Commission has completed its obligations for the census
cycle. Id. § 18. They receive compensation equal to at least 25 percent of the governor’s salary,
and the State reimburses them for costs incurred if the legislature does not appropriate sufficient
funds to cover these costs. Id. § 5.
With respect to the Commission’s operations, “[a] final decision of the commission to
adopt a redistricting plan requires a majority vote of the commission, including at least two
commissioners who affiliate with each major party, and at least two commissioners who do not
affiliate with either major party.” Id. § 14(c). Commissioners are required to “abide by the
following criteria in proposing and adopting” these plans:
(a) Districts shall be of equal population as mandated by the United States
constitution, and shall comply with the voting rights act and other federal laws.
(b) Districts shall be geographically contiguous. Island areas are considered to be
contiguous by land to the county of which they are a part.
(c) Districts shall reflect the state’s diverse population and communities of
interest. Communities of interest may include, but shall not be limited to,
populations that share cultural or historical characteristics or economic
interests. Communities of interest do not include relationships with political
parties, incumbents, or political candidates.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 7
(d) Districts shall not provide a disproportionate advantage to any political party.
A disproportionate advantage to a political party shall be determined using
accepted measures of partisan fairness.
(e) Districts shall not favor or disfavor an incumbent elected official or a
candidate.
(f) Districts shall reflect consideration of county, city, and township boundaries.
(g) Districts shall be reasonably compact.
Id. § 13.
The Amendment includes the following provision regulating the commissioners’ ability
to speak publicly about their duties:
The commission, its members, staff, attorneys, and consultants shall not discuss
redistricting matters with members of the public outside of an open meeting of the
commission, except that a commissioner may communicate about redistricting
matters with members of the public to gain information relevant to the
performance of his or her duties if such communication occurs (a) in writing or
(b) at a previously publicly noticed forum or town hall open to the general public.
Id. § 11.
C. Procedural Posture
Anthony Daunt, along with numerous other individual plaintiffs, filed a complaint and
motion for preliminary injunction against Secretary Benson on July 30, 2019, alleging that the
Commission’s eligibility criteria violated the First and Fourteenth Amendments. Daunt, R. 1
(Compl. ¶ 2) (Page ID #3); Daunt, R. 4 (Mot. for Prelim. Inj.) (Page ID #53).1 These plaintiffs
(“Daunt”) alleged that they “each desire[d] to serve on the Commission but are excluded from
consideration” due to the eligibility criteria. Daunt, R. 1 (Compl. ¶ 39) (Page ID #17).2 The
district court thereafter granted a motion to intervene as defendant filed by Count MI Vote d/b/a
1
Because we consider two appeals, and thus two sets of district-court documents, all record cites identify
the specific case in which the given record was filed. For purposes of clarity, rather than prefacing all record cites
by case number, we preface all record cites by the lead plaintiff’s name in the relevant case. For example, rather
than “No. 19-2377, R. 1,” we use “Daunt, R. 1.”
2
The district court’s opinion sets forth in detail the various bases upon which the plaintiffs-appellants are
excluded from serving on the Commission. Daunt v. Benson, No. 1:19-CV-614, 2019 WL 6271435, at *6–7 (W.D.
Mich. Nov. 25, 2019).
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 8
Voters Not Politicians (“VNP”), the ballot-proposal committee that filed Proposal 18-2. Daunt,
R. 23 (Op. & Order at 1) (Page ID #262).
Three weeks after the Daunt case commenced, the Michigan Republican Party (“MRP”),
along with numerous individual plaintiffs, filed a complaint and motion for preliminary
injunction against Secretary Benson on August 22, 2019. MRP similarly alleged that the
eligibility criteria of the Amendment violated the First and Fourteenth Amendments, and
additionally alleged that the Amendment’s provision allowing applicants to self-identify as
Republicans violated MRP’s freedom of association, that the Commission’s composition was
viewpoint-discriminatory, and that the speech provision violated the First Amendment. MRP, R.
1 (Compl. ¶¶ 65–129) (Page ID #15–24); MRP, R. 2 (Mot. for Prelim. Inj. at 2) (Page ID #36).
The district court thereafter granted VNP’s motion to intervene as defendant. MRP, R. 15 (Order
at 1) (Page ID #171).
On September 11, 2019, the district court consolidated Daunt with MRP. Daunt, R. 30
(Order at 2) (Page ID #334). On November 25, 2019, the district court denied both motions for a
preliminary injunction. Daunt v. Benson, No. 1:19-CV-614, 2019 WL 6271435 (W.D. Mich.
Nov. 25, 2019). Daunt and MRP timely filed notices of appeal pursuant to 28 U.S.C.
§ 1292(a)(1). Daunt, R. 69 (Notice of Interlocutory Appeal) (Page ID #974); MRP, R. 65
(Notice of Interlocutory Appeal) (Page ID #877).
II. DISCUSSION
A. Standard of Review
In deciding whether to grant a preliminary injunction, a court weighs four factors:
“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant
would suffer irreparable injury absent the injunction; (3) whether the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by the issuance of
an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012). “A district
court’s decision regarding whether to grant a preliminary injunction—and its weighing of the
four factors—is normally reviewed for an abuse of discretion.” Id. at 819. “In First Amendment
cases, however, ‘the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 9
of success on the merits. This is so because . . . the issues of the public interest and harm to the
respective parties largely depend on the constitutionality of the [state action].’” Id. (quoting
Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007)). We review for abuse
of discretion, subjecting factual findings to clear-error review and examining legal conclusions
de novo. See Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014).
B. The Eligibility Criteria
Both Daunt and MRP challenge the constitutionality of the Amendment’s eligibility
criteria as violative of the First and Fourteenth Amendments. Both the question of the criteria’s
constitutionality and the analytical framework through which to answer this question are matters
of first impression not only in this circuit but in the federal courts generally. For the reasons
explained below, we believe that the eligibility criteria are constitutional under either the
Anderson-Burdick test or the unconstitutional-conditions doctrine.3 Because the plaintiffs-
appellants’ challenge to the eligibility criteria is unlikely to succeed under either framework,
however, “we need not choose between the two,” Citizens for Legislative Choice v. Miller,
144 F.3d 916, 920 (6th Cir. 1998), and will instead discuss each one below.
1. The Anderson-Burdick Test
In Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428(1992), the Supreme Court articulated a “flexible standard,” Burdick, 504 U.S. at 434, for a court
to evaluate “[c]onstitutional challenges to specific provisions of a State’s election laws,”
Anderson, 460 U.S. at 789. The Anderson-Burdick test may apply to First Amendment claims as
well as to Equal Protection claims. See Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir.
2012). Although most—if not all—of the cases considered by the Supreme Court and this court
under the Anderson-Burdick test have involved laws that regulate the actual administration of
elections, the rationales for applying the Anderson-Burdick test—ensuring that “the democratic
processes” are “fair and honest,” Storer v. Brown, 415 U.S. 724, 730 (1974), and “maintain[ing]
3
The defendants-appellees also raise the possibility of the court applying the “deferential approach” that we
discussed in Citizens for Legislative Choice v. Miller, 144 F.3d 916 (6th Cir. 1998). Unlike the well-established
analytical frameworks we discuss herein, this approach has not been further developed by this court, so we do not
consider it here.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 10
the integrity of the democratic system,” Burdick, 504 U.S. at 441—resonate here, too. At
bottom, the Anderson-Burdick framework is used for evaluating “state election law[s],” Burdick,
504 U.S. at 434, and a law restricting membership of the body that draws electoral lines could
conceivably be classified as an “election law.” The Amendment is designed to further the exact
goals described above: It requires commissioners to “perform their duties in a manner that is
impartial and reinforces public confidence in the integrity of the redistricting process.” MICH.
CONST., art. IV, § 6(10). For these reasons, we proceed to apply the Anderson-Burdick balancing
test.
In Anderson, the Supreme Court first articulated this test as follows:
[A court] must first consider the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate. It then must identify and evaluate the precise interests put
forward by the State as justifications for the burden imposed by its rule. In
passing judgment, the Court must not only determine the legitimacy and strength
of each of those interests, it also must consider the extent to which those interests
make it necessary to burden the plaintiff's rights.
460 U.S. at 789. The level of scrutiny under this test “depends upon the extent to which a
challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at
434. In particular,
when those rights are subjected to “severe” restrictions, the regulation must be
“narrowly drawn to advance a state interest of compelling importance.” But when
a state election law provision imposes only “reasonable, nondiscriminatory
restrictions” upon the First and Fourteenth Amendment rights of voters, “the
State’s important regulatory interests are generally sufficient to justify” the
restrictions.
Id. (citations omitted). “Regulations falling somewhere in between—i.e., regulations that impose
a more-than-minimal but less-than-severe burden—require a ‘flexible’ analysis, ‘weighing the
burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’”
Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Green Party of
Tennessee v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)). As we explained in Miller,
determining whether the burden is severe or incidental requires examining “content-neutrality
and alternate means of access.” 144 F.3d at 921. A law would not be content-neutral, and would
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 11
thus impose a severe burden, if it “limit[ed] political participation by an identifiable political
group whose members share a particular viewpoint, associational preference, or economic
status.” Id. (quoting Anderson, 460 U.S. at 793). And a law would impose a severe burden if it
left “few alternate means of access to the ballot,” “restrict[ing] ‘the availability of political
opportunity.’” Id. (quoting Anderson, 460 U.S. at 793).
On the question of content-neutrality, we concluded in Miller that a lifetime-term-limit
law did not impose a severe burden because it
burdens no voters based on “the content of protected expression, party affiliation,
or inherently arbitrary factors such as race, religion, or gender.” It burdens no
voters based on their views on any of the substantive “issues of the day,” such as
taxes or abortion. Apart from the term limits issue, voters who favor experience
are not in any sense a recognized “group,” and we are aware of no historical bias
against incumbent politicians or their supporters.
Id. at 922 (citations omitted). Each of these metrics for assessing content-neutrality yields the
same result here. The Amendment’s eligibility criteria do not burden the plaintiffs-appellants
based on their status as Republicans, cf. Elrod v. Burns, 427 U.S. 347, 355 (1976) (“In order to
maintain their jobs, respondents were required to pledge their political allegiance to the
Democratic Party, work for the election of other candidates of the Democratic Party, contribute a
portion of their wages to the Party, or obtain the sponsorship of a member of the Party . . . .”), or
“on their views on any of the substantive ‘issues of the day,’” Miller, 144 F.3d at 922, and
neither Daunt nor MRP (with respect to its members) argues that there is a “historical bias”
against them in their capacity as individuals with potential conflicts of interest, id. On the
question of alternate means of availing oneself of political opportunities, the temporal limitation
of the law in this case belies any suggestion that the burden is severe. See Clements v. Fashing,
457 U.S. 957, 967 (1982) (“A ‘waiting period’ is hardly a significant barrier to candidacy.”).
Moreover, “[p]laintiffs may run for any [nonpartisan] elected office; they may vote, distribute
campaign literature, [and] voice their political opinions . . . .” Grizzle v. Kemp, 634 F.3d 1314,
1324 (11th Cir. 2011). The burden is not severe.
On the other end of Anderson-Burdick’s sliding scale, it may appear that the burden
imposed by the eligibility criteria is not minimal because the criteria do not constitute a
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 12
“generally applicable, nondiscriminatory” regulation. Obama for Am., 697 F.3d at 433–34; see
Burdick, 504 U.S. at 434. Unlike, for example, “a flat ban on all forms of write-in ballots,”
which treats all voters equally, Burdick, 504 U.S. at 438, the Amendment targets specific classes
of citizens based on their past political activities. And although there is no “federally protected
interest” in holding state office, Moncier v. Haslam, 570 F. App’x 553, 559 (6th Cir. 2014)
(collecting cases), several of the eligibility criteria clearly correspond to activities protected by
the First Amendment. See, e.g., Elrod, 427 U.S. at 370–71 (explaining that Supreme Court
precedent explicitly regarded “political campaigning and management” as “activities . . .
protected by the First Amendment”); Autor v. Pritzker, 740 F.3d 176, 182 (D.C. Cir. 2014)
(“[R]egistered lobbyists are protected by the First Amendment right to petition.”). Yet the
Supreme Court has deemed similar restrictions on political expression to be minimal. See
Clements, 457 U.S. at 967 (describing a two-year “waiting period” imposed on current
officeholders before they could run for state legislature to be a “de minimis burden”); U.S. Civil
Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 550, 556 (1973) (Hatch
Act’s bar on federal employees “tak[ing] an active part in political management or in political
campaigns” “did not interfere with a ‘wide range of public activities’”) (quoting United Public
Workers v. Mitchell, 330 U.S. 75, 100 (1947)).
Even if the eligibility criteria imposed a moderate burden on activities actually protected
by the First Amendment, however, the Amendment would easily satisfy Anderson-Burdick’s
middle-ground, “flexible analysis,” under which we “weigh[] the burden on the plaintiffs against
the state’s asserted interest and chosen means of pursuing it.” Green Party of Tennessee,
767 F.3d at 546. The burden on the plaintiffs-appellants is relatively insignificant, given (1) their
ability to serve on the Commission after their six-year period of ineligibility expires, (2) the lack
of any direct prohibition or regulation of pure speech, cf. McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 345 (1995), and (3) the absence of any fundamental right to be a member of the
Commission, see Snowden v. Hughes, 321 U.S. 1, 6–7 (1944).4 By contrast, Michigan has a
compelling interest “in limiting the conflict of interest implicit in legislative control over
4
Still, one would search in vain for any indication in this opinion that we will relax judicial scrutiny in the
area of states structuring their governments “absent the infringement of a dramatic federal interest or a significant
violation of constitutional rights.” Concurring Op. at 37.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 13
redistricting.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct.
2652, 2676 (2015) (quoting Bruce Cain, Redistricting Commissions: A Better Political Buffer?
121 YALE L. J. 1808, 1808 (2012)) (alteration omitted). Furthermore, “[a]s a sovereign polity,
Michigan has a fundamental interest in structuring its government.” Miller, 144 F.3d at 923.
The challenged provisions of the Amendment directly advance both of these interests.
Accordingly, the district court did not abuse its discretion in concluding that the plaintiffs-
appellants are unlikely to succeed on their First and Fourteenth Amendment claims against the
eligibility criteria under the Anderson-Burdick test.
2. Unconstitutional Conditions
The other potential framework through which to evaluate the plaintiffs-appellants’
challenge to the eligibility criteria is the unconstitutional-conditions doctrine. Rather than
claiming a First Amendment right to sit on the Commission,5 the plaintiffs-appellants claim First
Amendment rights to engage in the political activities that make them ineligible for the
governmental benefit of membership on the Commission. In Perry v. Sindermann, 408 U.S. 593(1972), the Supreme Court held that the government
may not deny a benefit to a person on a basis that infringes his constitutionally
protected interests—especially, his interest in freedom of speech. For if the
government could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms would in effect be
penalized and inhibited. This would allow the government to “produce a result
which (it) could not command directly.” Such interference with constitutional
rights is impermissible.
Id. at 597 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). In other words, “[w]hat the
First Amendment precludes the government from commanding directly, it also precludes the
government from accomplishing indirectly.” Rutan v. Republican Party of Illinois, 497 U.S. 62,
77–78 (1990).
5
This distinguishes their case from Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117 (2011), in which
legislators unsuccessfully claimed that conflict-of-interest rules preventing them from voting on legislation violated
their alleged First Amendment right to cast such legislative votes. Carrigan’s genealogy of conflict-of-interest rules
is instructive, as discussed below, but its rejection of the idea that the First Amendment protects one’s ability to cast
a legislative vote is inapposite here. Daunt’s and MRP’s First Amendment claim deals with activities outside of the
Commission, not whether they are entitled to sit on the Commission. See Daunt Br. at 28 (acknowledging that
“there is no constitutional right to government employment”).
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As discussed above, supra Part II.B.1, it is clear that at least some of the activities
restricted by the eligibility criteria are protected by the First Amendment. In light of the
government’s interest in avoiding partisan conflicts of interests and unsavory patronage
practices, however, the Supreme Court has repeatedly held that these types of restrictions do not
run afoul of the First Amendment or the Equal Protection Clause. First, in United Public
Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75 (1947), the Supreme Court addressed the
constitutionality of the following sentence of the Hatch Act: “No officer or employee in the
executive branch of the Federal Government . . . shall take any active part in political
management or in political campaigns.” Id. at 82. The Court upheld the provision, explaining
that
Congress and the President are responsible for an efficient public service. If, in
their judgment, efficiency may be best obtained by prohibiting active participation
by classified employees in politics as party officers or workers, we see no
constitutional objection.
Id. at 99. Far from a wholesale ban on political expression, the provision “le[ft] untouched full
participation by employees in political decisions at the ballot box and forb[ade] only the partisan
activity of federal personnel deemed offensive to efficiency.” Id. The Court dismissed the
suggestion that no harm could be done by federal employees engaging in these activities in their
“free time” outside work hours. Id. at 95. “The influence of political activity by government
employees, if evil in its effects on the service, the employees or people dealing with them, is
hardly less so because that activity takes place after hours.” Id.The Supreme Court again addressed this provision of the Hatch Act in United States Civil
Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973), and
reaffirmed Mitchell.6 In Letter Carriers, the Court was unequivocal in approving of Congress’s
power to cleanse the civil service of partisan conflicts of interests, stating that if Congress
6
On the same day that it decided Letter Carriers, the Supreme Court upheld an Oklahoma statute that
“restrict[ed] the political activities of the State’s classified civil servants in much the same manner that the Hatch
Act proscribe[d] partisan political activities of federal employees.” Broadrick v. Oklahoma, 413 U.S. 601, 602
(1973). The relevant portions of the Broadrick decision, see id. at 616–18, mirror the Letter Carriers analysis, so
we discuss only the latter.
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forbade activities such as organizing a political party or club; actively
participating in fund-raising activities for a partisan candidate or political party;
becoming a partisan candidate for, or campaigning for, an elective public office;
actively managing the campaign of a partisan candidate for public office;
initiating or circulating a partisan nominating petition or soliciting votes for a
partisan candidate for public office; or serving as a delegate, alternate or proxy to
a political party convention[,]
such actions would “unquestionably be valid.” Id. at 556. The Court explained that “the
judgment of Congress, the Executive, and the country appears to have been that partisan political
activities by federal employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government, and employees
themselves are to be sufficiently free from improper influences.” Id. at 564.
Finally, in Clements v. Fashing, 457 U.S. 957 (1982), the Supreme Court relied on
Mitchell and Letter Carriers to uphold two sections of the Texas Constitution, the first of which
prohibited certain officials from holding a seat in the state legislature prior to the expiration of
their terms of office, and the second of which required an officeholder to resign before running
for any other elected office. Whether under the Equal Protection Clause or the First
Amendment, the Court held, “the burden on appellees’ First Amendment interests in candidacy
are so insignificant that the classifications of § 19 and § 65 may be upheld consistent with
traditional equal protection principles.” Id. at 971.7 The Court plurality’s application of rational-
basis review under the Equal Protection Clause “dispose[d] of” the challengers’ First
Amendment claim. Id.
Mitchell, Letter Carriers, and Clements squarely foreclose the present challenge to the
Amendment’s eligibility criteria. Just as the Supreme Court in these cases permitted federal and
state governments to restrict the “partisan political activity” of federal employees, Mitchell,
330 U.S. at 100, and state officeholders, Clements, 457 U.S. at 972, we discern no constitutional
limitation on Michigan making the forbearance from such activity a condition of sitting on an
7
Even Justice Brennan’s dissenting opinion in Clements, which faulted the plurality for focusing its
rational-basis review on whether the “class of candidates or voters that was burdened was somehow suspect” (for
example, based on their wealth) instead of focusing on “the impact on the First Amendment rights of candidates and
voters,” acknowledged that “some greater deference may be due the State because these restrictions affect only
public employees.” 457 U.S. at 977–78 n.2 (Brennan, J., dissenting).
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independent redistricting commission. MRP’s attempt to distinguish these cases is unpersuasive.
It points out that the Amendment, unlike the regulations in the abovementioned cases, does not
limit itself to “address[ing] undue influence, or its appearance, on current public employees and
officials” due to its retroactive effect. MRP Br. at 15. But Michigan’s interest in addressing the
appearance of undue influence—whether or not members of the Commission are “actively
partisan,” Mitchell, 330 U.S. at 98—permits it to disqualify not only active partisans but also
those whose recent partisan involvement, or whose association with active partisans, could create
the appearance that the Commission is staffed by political insiders. See Letter Carriers,
413 U.S. at 565 (“[I]t is not only important that the Government and its employees in fact avoid
practicing political justice, but it is also critical that they appear to the public to be avoiding it.”).
Efforts to purge conflicts of interest from the democratic process “have been commonplace for
over 200 years,” Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 122 (2011), and we are
loath to disturb this longstanding practice, particularly when “public confidence in the integrity
of the redistricting process” is at stake. MICH. CONST., art. IV, § 6(10); see Rucho v. Common
Cause, 139 S. Ct. 2484, 2507 (2019) (noting states’ interests in “restricting partisan
considerations in districting” and citing Michigan Commission Amendment as example).
Beyond these Supreme Court cases, decisions of our sister circuits demonstrate that even
when laws establish eligibility criteria for elected officeholders, thus burdening not only the
candidates themselves but voters who may have otherwise sought to elect them, see Bullock v.
Carter, 405 U.S. 134, 143 (1972), courts have applied a less-than-exacting standard of review.
For instance, in evaluating a statute involving eligibility criteria for elected office, the Eleventh
Circuit in Grizzle v. Kemp, 634 F.3d 1314 (11th Cir. 2011), declined to subject the statute to
strict scrutiny. In Grizzle, the plaintiffs were disqualified from running for election to Georgia
school boards because they had “immediate family member[s]” employed by their districts’
school systems. Id. at 1316. After discussing numerous cases applying rational-basis review to
laws establishing eligibility criteria for public office, the Eleventh Circuit followed suit,
explaining that “the State may regulate one step at a time in order to address what it deems the
most pressing issues.” Id. at 1325. And in Fletcher v. Marino, 882 F.2d 605 (2d Cir. 1989), the
Second Circuit applied rational-basis review to a law restricting certain political party officers
from being elected to community school boards. Id. at 613; see id. at 612 (“[L]aws that
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implicate, in a limited fashion, a person’s rights to participate in politics and to serve as an
elected official have survived review under the First Amendment and have not been subjected to
strict scrutiny.”). The laws at issue in these cases are highly similar to the eligibility criteria at
issue here. In fact, the most salient difference—that the laws in these cases involved elected
positions, whereas the Amendment does not—makes the argument for applying rational-basis
review even stronger here, given that the eligibility criteria do not burden any voter’s access to
the ballot. Under rational-basis review, for the reasons discussed supra Part II.B.1, the
Amendment is constitutional.
Furthermore, we note that the eligibility criteria do not represent some out-of-place
addition to an unrelated state program; they are part and parcel of the definition of this
Commission, of how it achieves independence from partisan meddling. This is critical to the
constitutionality of a challenged program under the unconstitutional-conditions doctrine, as the
Supreme Court’s government-funding cases make clear. The Court has explained that although
the Spending Clause of the Federal Constitution “includes an ancillary power to ensure that those
funds are properly applied to the prescribed use,” Rust v. Sullivan, 500 U.S. 173, 195 n.4 (1991),
the government may not create as a funding condition “the affirmation of a belief that by its
nature cannot be confined within the scope of the Government program.” Agency for Int’l Dev.
v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 221 (2013) (hereinafter “AOSI”). In AOSI, this
meant that a Policy Requirement conditioning the grant of public-health funds on recipients
“explicitly agree[ing] with the Government’s policy to oppose prostitution and sex trafficking”
was unconstitutional. Id. at 213. The Supreme Court explained in AOSI that “the Policy
Requirement goes beyond preventing recipients from using private funds in a way that would
undermine the federal program. It requires them to pledge allegiance to the Government’s policy
of eradicating prostitution.” Id. at 220. As in AOSI, here “[t]he line is hardly clear,” id. at 215,
but in our view, the Amendment does not go beyond preventing would-be commissioners from
engaging in activity that would undermine the independence of Michigan’s redistricting
commission, nor does it require them to pledge allegiance to any governmental policy. Far from
limiting the exercise of constitutional rights as extraneous conditions, the eligibility criteria
themselves “define the limits” of the Commission. Id. at 214.
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Also instructive in the unconstitutional-conditions context are the Supreme Court’s
political patronage cases, which address the propriety of “the conditioning of public employment
on political faith.” Elrod, 427 U.S. at 357; see Branti v. Finkel, 445 U.S. 507 (1980); Rutan, 497
U.S. 62. In Elrod, the Supreme Court held that the practice of patronage dismissals—firing
public employees because they were not loyal to the incumbent party—violated the First and
Fourteenth Amendments because these dismissals “severely restrict[ed] political belief and
association.” 427 U.S. at 372. In Branti, the Court followed Elrod in holding that “the
continued employment of an assistant public defender cannot properly be conditioned upon his
allegiance to the political party in control of the county government.” 445 U.S. at 519. And in
Rutan, the Court held that “the rule of Elrod and Branti extends to promotion, transfer, recall,
and hiring decisions based on party affiliation and support.” 497 U.S. at 79. Throughout these
cases, the Court considered whether, as an exception to this general rule against patronage
practices, “the hiring authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved,” Branti, 445 U.S. at 518,
namely for certain “high-level employees,” Rutan, 497 U.S. at 74, but never applied this
exception.
On the one hand, this line of cases is clearly distinguishable, given that it involved
individuals who faced adverse employment actions because of their association with a particular
political party. In this case, by contrast, Daunt and others like him are barred from the
Commission because of their associations with professional politics, regardless of which party
they or their family member supported. Being fired from one’s job because one is a Republican
“unquestionably inhibits protected belief and association,” Elrod, 427 U.S. at 359, in a way that
the Amendment unquestionably does not. At first blush these cases appear to point in the
opposite direction of Mitchell, Letter Carriers, and Clements, which upheld restrictions on who
could hold office. Upon closer examination, however, the patronage cases actually reaffirm the
principles articulated in Mitchell, Letter Carriers, and Clements. Indeed, the Supreme Court
explained in Elrod that “the activities that were restrained by the legislation involved in [Mitchell
and Letter Carriers] are characteristic of patronage practices”—that is, the same patronage
practices that the Court in Elrod so harshly criticized. 427 U.S. at 367. In other words, barring
governmental employees from “taking an active part in political management or political
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campaigns,” Letter Carriers, 413 U.S. at 554, served to “safeguard the core interests of
individual belief and association” that patronage-based systems undermined. Elrod, 427 U.S. at
371. The Elrod/Branti/Rutan line of patronage cases thus supports the conclusion that the
eligibility criteria do not impose an unconstitutional condition on the plaintiffs-appellants.
***
Under either of the foregoing analytical frameworks, the Amendment’s eligibility criteria
pass muster. The district court did not abuse its discretion in denying a preliminary injunction.
C. MRP’s Freedom-of-Association Claim
MRP argues that the provision of the Amendment allowing applicants to self-identify as
being affiliated with the Republican Party violates MRP’s freedom of association. We conclude
that MRP is unlikely to succeed on the merits of this claim because its argument overextends the
Supreme Court’s decision in California Democratic Party v. Jones, 530 U.S. 567 (2000), and
mischaracterizes the nature of the Commission.
In Jones, the Supreme Court invalidated California’s “blanket primary” system, in which
all voters could vote for any candidate for nomination to public office, regardless of the
candidate’s party affiliation. The Court reasoned:
In no area is the political association’s right to exclude more important
than in the process of selecting its nominee. That process often determines the
party’s positions on the most significant public policy issues of the day, and even
when those positions are predetermined it is the nominee who becomes the party’s
ambassador to the general electorate in winning it over to the party’s views. . . .
Unsurprisingly, our cases vigorously affirm the special place the First
Amendment reserves for, and the special protection it accords, the process by
which a political party “select[s] a standard bearer who best represents the party’s
ideologies and preferences.”
Id. at 575 (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 224
(1989)). The Supreme Court’s decision to strike down the blanket-primary system was thus
based on the California system’s interference with a party’s ability to select its nominee in a
representative election. A decade later, in Washington State Grange v. Washington State
Republican Party, 552 U.S. 442 (2008), the Supreme Court explicitly cabined its Jones holding
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to prohibit only those primary systems that allow voters of any affiliation to “choose parties’
nominees.” Id. at 453. Unlike in Jones, the Washington primary system in Washington State
Grange simply provided that “[t]he top two candidates from the primary election proceed to the
general election regardless of their party preferences,” and “[w]hether parties nominate their own
candidates outside the state-run primary is simply irrelevant.” Id. In other words, “[t]he essence
of nomination—the choice of a party representative—does not occur under [Washington’s
primary system]. The law never refers to the candidates as nominees of any party, nor does it
treat them as such.” Id.This narrow inquiry into whether the challenged system actually involves the selection of
a party’s nominees dooms MRP’s freedom-of-association claim. As Secretary Benson argues,
“in relying on Jones, MRP’s claim rests almost entirely upon the premise that Commission
members are something that the Constitution says they cannot be—party officials.” Benson Br.
at 69. On the other hand, even if the self-designated “Republicans” on the Commission are not
technically elected to represent the Republican Party or labeled as such upon their installment,
the Amendment’s effort to ensure ideological diversity on a Commission that debates “inherently
political” issues confirms that these Republican commissioners are, in some sense,
representatives of a Republican point of view. MRP Br. at 8. We agree that, in some sense, the
Commission’s design reflects a general commitment to representing different perspectives. VNP
even acknowledges that the Commission’s structure “serves to ensure that the Commission’s
decisions reflect some level of bipartisan or cross-partisan support.” VNP Br. at 39. Even if the
commissioners are constitutionally bound to avoid drawing maps that disproportionately favor a
political party, MICH. CONST., art. IV, § 6(13)(d), it is diverse ideological representation—and
consensus, see id. § 6(14)(c) (requiring a final decision on a redistricting plan to have the support
of at least two commissioners who identify with each of the major parties and at least two who
do not affiliate with either major party)—that will theoretically prevent such results.
Yet Jones and Washington State Grange permit freedom-of-association claims in this
context only when a narrower form of political representation is at issue. In particular, these
cases speak of an elected “standard bearer,” Jones, 530 U.S. at 575 (quoting Eu, 489 U.S. at
224), whose representation can result in “political power in the community,” id. (quoting
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Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986)). Political parties must be able
to retain control over their nominees for elected office precisely because these nominees are
supposed to approach their work in accordance with a particular political ideology. By contrast,
the commissioners here are not elected, and their duties do not include translating “common
principles” with party adherents into “concerted action.” Tashjian, 479 U.S. at 216. Standard
bearers in Jones were supposed to fight for partisan ends; commissioners here are prohibited
from doing so.
Moreover, MRP conflates identification with the Republican Party and identification with
MRP. Applicants do not have the option of self-identifying as affiliates of the Michigan
Republican Party; all they can do is check a box next to the statement, “I affiliate with the
Republican Party.” See Application for Michigan Independent Citizens Redistricting
Commission at 3, The Office of Secretary of State Jocelyn Benson, https://www.michigan.gov/d
ocuments/sos/Michigan__Independent__Citizens_Redistricting_Commission_booklet_669598_7
.pdf. MRP does not explain why, as a state affiliate of the Republican Party, it should have the
right to control the affiliation of Michigan citizens with the national party. Indeed, as VNP
points out, MRP may diverge from the Republican National Committee on an issue related to
those before the court in this case. Whereas MRP seeks strict-scrutiny review of Michigan’s
partisan-balanced Commission, the Republican National Committee has filed an amicus brief
with the Supreme Court urging it to apply a “comparatively lenient standard of review” when
considering the constitutionality of Delaware’s political-balance requirement for state judicial
service, Amicus Curiae Brief of the Republican National Committee in Support of Petitioner at 5,
No. 19-309, Carney v. Adams, 140 S. Ct. 602 (2019). Particularly in light of apparent
differences between the MRP and the Republican Party generally, it is unclear why the former
would have the right to say who cannot affiliate with the latter.
Furthermore, MRP’s argument that commissioners will be standard bearers because they
must weigh political matters in “public meetings, available for all to see,” MRP Br. at 8, is
directly foreclosed by Washington State Grange. In that case, the Supreme Court considered the
Washington Republican Party’s argument that “even if the [state’s] primary does not actually
choose parties’ nominees, it nevertheless burdens their associational rights because voters will
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assume that candidates on the general election ballot are the nominees of their preferred parties.”
552 U.S. at 454. The Court characterized this as a concern that “voters will be confused by
candidates’ party-preference designations.” Id. Such concern, the Court explained, was “sheer
speculation”:
It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur
cases reflect a greater faith in the ability of individual voters to inform themselves
about campaign issues.’” There is simply no basis to presume that a well-
informed electorate will interpret a candidate’s party-preference designation to
mean that the candidate is the party’s chosen nominee or representative or that the
party associates with or approves of the candidate. This strikes us as especially
true here, given that it was the voters of Washington themselves, rather than their
elected representatives, who enacted [the challenged law].
Id. at 454–55 (citations omitted). In similar fashion, it was the voters of Michigan themselves,
rather than their elected representatives, who enacted the Amendment. Even a commissioner’s
public identification as a Republican would not create a presumption that Michigan’s “well-
informed electorate” will believe that this commissioner is a delegate of the Michigan
Republican Party. This concern over confusion is even less significant here than in Washington
State Grange, because here the relevant individual’s self-identification with a political party
exists outside the context of a representative election—there is no risk that a voter will
accidentally vote for an individual who has fraudulently identified themselves as an affiliate of
the Republican Party.
MRP further argues that “randomly selecting commissioners from th[e] pool cannot cure
the harm” of initially allowing applicants to “self-designate as affiliates of MRP.” MRP Br. at
11. This statement ignores the full scope of the Amendment. To assert that “the damage is
done” after the initial self-affiliation stage, MRP Br. at 11, overlooks the party’s ability—through
its affiliated legislators—to strike up to ten applicants from the randomly selected pool of 200
applicants. MICH. CONST., art. IV, § 6(2)(d)(ii), (e). MRP contends that it “will have no reliable
means to determine an applicant’s true political affiliation,” MRP Br. at 11, but the
commissioner application includes a section in which the applicant is asked to respond to the
following two prompts: “Why do you want to serve on the Michigan Independent Citizens
Redistricting Commission?” and “Describe why or how you affiliate with either the Democratic
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Party, the Republican Party, or why you don’t affiliate with either.” Appl. at 5. If a Republican
legislator finds an applicant’s response to be objectionable or unsatisfying, or if the legislator is
suspicious of an applicant’s failure to fill out this section at all, the legislator may strike this
applicant. See Brennan Center Br. at 24 (“These peremptory strikes ensure that legislative
leaders can eliminate potential Commissioners whose presence on the Commission they would
find particularly objectionable . . . .”).
In sum, MRP fails to demonstrate that it has a First Amendment right to control the self-
affiliation of commissioner-applicants with the Republican Party. Accordingly, the district court
did not abuse its discretion in concluding that MRP is unlikely to succeed on its freedom-of-
association claim.
D. MRP’s Freedom-of-Speech Claim
MRP argues that “[t]he Amendment imposes a content-based regulation that prohibits
speech regarding an entire topic, one involving core political speech that is at the heart of First
Amendment protection.” MRP Br. at 27. As recounted above, the Amendment states that
commissioners
shall not discuss redistricting matters with members of the public outside of an
open meeting of the commission, except that a commissioner may communicate
about redistricting matters with members of the public to gain information
relevant to the performance of his or her duties if such communication occurs (a)
in writing or (b) at a previously publicly noticed forum or town hall open to the
general public.
MICH. CONST., art. IV, § 6(11). In MRP’s view, the absence of any language that limits this
restraint to speech made by commissioners in their official capacity makes this a content-based
regulation “target[ing] a specific subject matter—redistricting,” rendering it subject to strict
scrutiny. MRP Br. at 28. Contra Daunt, 2019 WL 6271435, at *21 (“The restriction at issue
applies only to official speech made by commissioners in their official capacity.”). Secretary
Benson responds that MRP lacks standing to bring this claim, and that the Amendment either
restricts only the official speech of commissioners or it permissibly limits their private speech on
a matter of public concern under Garcetti v. Ceballos, 547 U.S. 410 (2006). See Benson Br. at
82–86. To these arguments VNP adds that the court should construe the Amendment to avoid
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 24
constitutional difficulty if possible, and that the speech provision can be upheld as a “time, place,
and manner” restriction. VNP Br. at 47. We first address whether MRP has standing to bring
this claim, and then turn to the merits.
1. Associational Standing
Article III requires that a plaintiff have “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised
(May 24, 2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). An injury, for
standing purposes, means the “invasion of a legally protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent.’” Lujan, 504 U.S. at 560 (citations omitted). An
association has the right to sue in lieu of its individual members when: “(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977).
MRP can adequately demonstrate that its members would otherwise be able to satisfy
Lujan’s requirements for Article III standing. Beginning with injury-in-fact, the injury is
“concrete and particularized”: It would harm MRP members’ “concrete, personal interest” in
speaking about redistricting matters if selected for the Commission, Allen, 468 U.S. at 756; see
Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 610 (6th Cir. 2008) (identifying
“enforcement of a challenged statute” as a concrete harm). It is also imminent: Applications for
the Commission are now available, and MRP members who might otherwise apply for the
Commission might opt not to apply because joining the Commission will allegedly impair their
interest in speaking about redistricting. The injury-in-fact is therefore imminent because the
members’ “‘intention to engage in a course of conduct’ implicating the [First Amendment] and []
the threat of enforcement of the challenged law against the [members] is ‘credible.’” Platt v. Bd.
of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 451–52 (6th Cir.
2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
Secretary Benson and VNP do not argue that MRP has failed to prove that this injury is fairly
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 25
traceable to Benson’s allegedly unlawful conduct and that the injury is likely to be redressed by
the requested relief, and it is clear that MRP’s challenge satisfies both of these prongs of the
standing analysis.
MRP is also able to demonstrate that the interests that it seeks to protect—the free-speech
rights of its members who might serve on the Commission—are germane to the organization’s
purpose. As a political party, MRP has an interest in its members—including those serving on
the Commission—speaking freely about the highly contentious subject of redistricting, a subject
that directly affects MRP’s political power. Finally, this claim does not require the participation
of individual MRP members. For these reasons, we conclude as a preliminary matter that MRP
has associational standing to challenge the speech provision of the Amendment.
2. Merits
We agree with the district court that the speech provision is constitutional, but not for the
reason it articulated. The district court concluded that the provision “applies only to official
speech made by commissioners in their official capacity,” Daunt, 2019 WL 6271435, at *21, but
did not explain how the plain text of the provision supported that reading. In support of this
reading, VNP argues that the provision’s language allowing the commissioners to discuss
redistricting in order “to gain information relevant to the performance of his or her duties” limits
the scope of the entire provision to speech involving official duties. VNP Br. at 47 (quoting
MICH. CONST., art. IV, § 6(11)). But we believe the opposite to be true. The quoted language
appears in an exception, suggesting that all discussion of redistricting matters with the public is
prohibited other than official speech in certain designated forums. Indeed, a flat bar on
commissioners otherwise discussing redistricting matters with the public is precisely what
Secretary Benson defends. Benson Br. at 86 (“With 13 members, there will be 13 individual
views about the process, and individual statements about the redistricting without other members
present may result in misleading or inaccurate information being presented to the public as the
Commission’s official position.”). Secretary Benson also offers an even more speech-restrictive
argument: In contending that MRP fails to explain how commissioners could possibly speak
about redistricting matters “in any manner other than in their official capacity,” id. at 84, she
assumes that any speech about redistricting by a commissioner is per se official speech, in stark
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contradiction to the teachings of Garcetti and its progeny, which emphasize that “a citizen who
works for the government is nonetheless a citizen,” Garcetti, 547 U.S. at 419, and may speak as
a citizen even on matters relating to her or his job, see Lane v. Franks, 573 U.S. 228, 238 (2014)
(“Truthful testimony under oath by a public employee outside the scope of his ordinary job
duties is speech as a citizen for First Amendment purposes. That is so even when the testimony
relates to his public employment or concerns information learned during that employment.”).
Neither this argument nor the district court’s narrow reading finds support in the plain text of the
provision or in the employee-speech cases.
In our view, the challenged provision indeed circumscribes some speech made in a
commissioner’s capacity as a private citizen, but nevertheless survives constitutional scrutiny
under Garcetti. Specifically, the provision imposes speech restrictions that are tailored to
ensuring that the Commission “operate[s] efficiently and effectively,” Garcetti, 547 U.S. at 419,
in two distinct ways. First, it prevents the “extract[ion] [of] gossip from commissioners.”
Benson Br. at 87. The potential for commissioners, while speaking in their private capacities, to
disclose “sensitive, confidential, or privileged information,” Lane, 573 U.S. at 242, relating to
the redistricting commission supports the state’s interest in closely regulating the speech of these
commissioners. See Sims v. Metro. Dade County, 972 F.2d 1230, 1237 (11th Cir. 1992)
(“[W]hen the employee serves in a sensitive capacity that requires extensive public contact, the
employee’s private speech may pose a substantial danger to the agency’s successful
functioning.”). Second, the provision ensures that outsiders do not “influence the[]
[commissioners’] votes out of public view.” Benson Br. at 87. MRP argues that the Amendment
is not “narrowly tailored” and that Michigan law already contains a “less restrictive alternative”
to the Amendment, MRP Br. at 30, but this cites an inapplicable standard. The question is not
whether the speech provision survives strict scrutiny, but “whether [Michigan] had an adequate
justification for treating the [commissioners] differently from any other member of the general
public,” Garcetti, 547 U.S. at 418, who are free to discuss redistricting matters without
consequence. Although the provision does burden the commissioners’ freedom to speak openly
about redistricting, this burden is outweighed by Michigan’s more-than-adequate justifications
for limiting speech by commissioners on redistricting matters.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 27
For these reasons, the district court did not abuse its discretion in concluding that MRP is
unlikely to prevail on the merits of its freedom-of-speech claim against the speech provision of
the Amendment.
E. MRP’s Viewpoint-Discrimination Claim
MRP argues that “the Amendment expressly discriminates against applicants based on
their political viewpoint, specifically favoring those applicants who do not affiliate with either
major political party over applicants who affiliate with either major party.” MRP Br. at 24. This
argument falls significantly short of demonstrating a likelihood of success on the merits.
Although Secretary Benson suggests that MRP’s argument is “ambiguous on what
‘viewpoint’ [MRP] seek[s] to claim as being affected by the amendment,” Benson Br. at 80, in
our view MRP’s argument is relatively clear: The “‘do not affiliate with either major political
party’ perspective,” MRP Br. at 25, which is guaranteed five seats, is favored over the
Republican perspective, which is guaranteed four seats. That this “non-affiliated” perspective is
also similarly favored over the Democratic perspective does not, by itself, foreclose the
possibility that impermissible viewpoint discrimination is afoot.8 Indeed, on this limited point,
the Supreme Court has acknowledged that a party may claim viewpoint discrimination even
when it is not the only one targeted for censorship. See Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 831–32 (1995) (“The dissent’s declaration that debate is not skewed
so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple
ways.”).
Yet in order for MRP to demonstrate that the Amendment constitutes targeting by the
government of “particular views taken by speakers on a subject,” id. at 829, it would need to
demonstrate that something about allocating five seats to “not affiliated” individuals constitutes
differential treatment of Republicans on the basis of their views. Were these five seats allocated
to members of an identifiable third party, this showing would not be difficult, as members of this
hypothetical third party—associated with particular views—would be numerically favored over
8
In this section, we refer to the “not-affiliated” perspective as shorthand for “not affiliate[d] with either of
the two major parties,” as opposed to “not affiliated with any party.” See MICH. CONST., art. IV, § 6(2)(a)(iii).
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 28
self-identified Republicans with their associated views. MRP’s claim, by contrast, must ascend a
significantly steeper hill, given that the non-affiliated pool of applicants will be filled by
individuals with either a third-party affiliation or with no party at all. Still, the fact that the third
pool is open to any “non-affiliated” applicant does not itself make MRP’s viewpoint-
discrimination argument impossible, even with the knowledge that Democrats and Republicans
are treated equally under the Amendment. If the Commission had, for example, 100
commissioners, with only two slots open for members of the two largest parties, and the
remaining ninety-eight seats reserved for individuals who did not affiliate with either major
party, this structure would begin to look more like one that discriminated against majoritarian
viewpoints. Yet the Amendment provides for affiliates of the two largest parties to represent
eight out of thirteen seats on the Commission (a majority), so discrimination against the
Republican viewpoint as a majority viewpoint is absent. And MRP does not explain how
discrimination against the Republican viewpoint itself has occurred absent a showing that “the
five unaffiliated commissioners will constitute a monolithic bloc . . . .” VNP Br. at 41.
In our view, the Supreme Court’s “secondary effects” doctrine, articulated in City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), provides a useful analogue for
alternatively evaluating MRP’s argument. In Renton, the Supreme Court reviewed and
reaffirmed its prior holding that a zoning ordinance “designed to combat the undesirable
secondary effects” of a business that purveyed sexually explicit material would not be struck
down as an attempt to prevent the dissemination of this type of speech. Id. at 49. The Court
explained that the government could accord differential treatment to a content-defined subclass
of speech because that subclass was associated with specific “secondary effects” of the speech,
meaning that the differential treatment was “justified without reference to the content of the . . .
speech.” Id. at 48 (quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 771 (1976)).
That subclass of speech, in this case, would be speech associated with the two largest
parties, and the Amendment’s regulation of it would be “justified without reference to the
content of the . . . speech.” Id. The language of the Amendment makes this plain. It allocates
commissioner seats based not on identifiable political parties, but on the content-neutral majority
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 29
or minority status of the party with which the applicant identifies. The limitation on seats for
Democratic- and Republican-affiliating applicants is not designed to prevent the dissemination of
these parties’ ideas, but rather to combat the undesirable “secondary effect” of excluding those
who do not affiliate with the two major parties (or conversely, the effect of disproportionately
including those who affiliate with the two major parties). The fact that the Amendment could
have the effect of limiting a Republican viewpoint is not the basis upon which the differential
treatment is justified. The Amendment is structured to distinguish between applicants based
upon their identification with the two major parties or their non-affiliation. “These bases for
distinction refute the proposition that the selectivity of the restriction is ‘even arguably
“conditioned upon the sovereign’s agreement with what a speaker may intend to say.”’” R.A.V.
v. City of St. Paul, 505 U.S. 377, 390 (1992) (quoting Metromedia, Inc. v. San Diego, 453 U.S.
490, 555 (1981) (Stevens, J., dissenting in part)).
Another reason MRP’s viewpoint-discrimination argument is unlikely to succeed is that
the non-affiliating “viewpoint” has no greater sway in the actual decisionmaking of the
Commission than the Democratic or Republican viewpoint. A final decision of the Commission
in adopting a redistricting plan requires a majority vote that includes at least two commissioners
affiliated with each of the major parties and at least two who do not affiliate with either major
party. MICH. CONST., art. IV, § 6(14)(c). The non-affiliating “viewpoint” is thus treated the
same as the two other viewpoints.
MRP promotes the selection schemes of the Idaho and Arizona redistricting
commissions, but both schemes virtually guarantee that the resulting commissions will be
predominantly filled with adherents of the two largest political parties. Idaho’s scheme puts full
appointment power in the hands of the legislative leaders and state chairmen of the “two largest
political parties,” ID. CONST., art. III, § 2(2), and Arizona’s lets the majority and minority
legislative leaders—i.e. the heads of the two largest political parties—pick four commissioners,
who in turn select a fifth commissioner who is not registered with a party already “represented”
on the commission, AZ. CONST., art. IV, pt. 2, § 1(6), (8). Even Arizona’s scheme leaves the
choice of who will serve as the non-major-party commissioner up to the four commissioners who
are registered with the two largest parties. Id. at § 1(8). Michigan’s effort to ensure that a
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 30
sizeable minority of the members of its redistricting commission are non-affiliated with the two
major parties does not run afoul of the First Amendment, particularly given the Supreme Court’s
repeated recognition of state and local governments’ interests in guaranteeing minority
representation. See, e.g., Hechinger v. Martin, 411 F. Supp. 650 (D.D.C. 1976), aff’d, 429 U.S.
1030 (1977) (mem.) (affirming a three-judge district court’s conclusion that D.C. act
guaranteeing representation of political minorities on the city council was constitutional);
LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn.), aff’d, 409 U.S. 972 (1972) (mem.) (affirming
a three-judge district court’s conclusion that state minority representation statutes were
constitutional).
For these reasons, the district court did not abuse its discretion in concluding that MRP is
unlikely to succeed on its viewpoint-discrimination argument.
F. The Remaining Preliminary-Injunction Factors
“[O]ur cases warn that a court must not issue a preliminary injunction where the movant
presents no likelihood of merits success.” La.-Pac. Corp. v. James Hardie Bldg. Prod., Inc., 928
F.3d 514, 517 (6th Cir. 2019); see Hall v. Edgewood Partners Ins. Ctr., Inc., 878 F.3d 524, 527
(6th Cir. 2017) (“As long as there is some likelihood of success on the merits, these factors are to
be balanced, rather than tallied.”); Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d
724, 752 (8th Cir. 2008) (“Whether the grant of a preliminary injunction furthers the public
interest in such a case is largely dependent on the likelihood of success on the merits because the
protection of constitutional rights is always in the public interest.”). Without any likelihood of
success in demonstrating the existence of a constitutional violation, Daunt and MRP fail to
demonstrate that they will suffer irreparable injury in the absence of a preliminary injunction. As
for the remaining parts of the preliminary-injunction analysis, the public-interest factor
“merge[s]” with the substantial-harm factor when the government is the defendant, Nken v.
Holder, 556 U.S. 418, 435 (2009), and neither of these factors can be satisfied when the
challenged provisions are constitutional.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 31
III. CONCLUSION
For the foregoing reasons, the district court did not abuse its discretion in denying the
plaintiffs-appellants’ motions for a preliminary injunction. Accordingly, we AFFIRM the
judgment of the district court.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 32
_______________________________________
CONCURRING IN THE JUDGMENT
_______________________________________
CHAD A. READLER, Circuit Judge, concurring in the judgment. I concur in the
judgment, which affirms the denial of preliminary relief to Plaintiffs. In the face of somewhat
novel claims, the majority opinion appropriately pays deference to a sovereign state’s decision as
to self-governance. I write separately to emphasize one broad area of agreement with the
majority opinion, and one area of pointed disagreement.
1. Starting with a point of disagreement. While all agree the deference due Michigan
compels today’s result, the legal framework for reaching that conclusion is not the Anderson-
Burdick test. Anderson-Burdick is tailored to the regulation of election mechanics. Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 190 (2008) (“In later election cases we have followed
Anderson’s balancing approach.”); Burdick v. Takushi, 504 U.S. 328, 433 (1992) (applying
Anderson and noting that “[e]lection laws will invariably impose some burden upon individual
voters”); Stein v. Thomas, 672 F. App’x 565, 570 (6th Cir. 2016) (“When evaluating whether
state election procedures violate First and Fourteenth Amendment election rights, we use
[Anderson-Burdick].”). Following the Supreme Court’s lead, we have thus utilized that
framework in cases where it is alleged that a state election law burdens voting, from ballot-
access laws, Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015), to early-voting
regulations, Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012), to prohibitions on
party-line voting. Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 662 (6th Cir.
2016).
But Michigan’s redistricting initiative does not regulate the mechanics of an election. Far
from it, in fact. It simply sets the qualifications for Michigan residents who, if they satisfy
certain eligibility criteria and are selected by the Secretary of State, will serve as commissioners
who, working together as a commission, will draw electoral districts for the State, districts in
which as-yet-unknown candidates will seek legislative office in a general election, following
party primaries. In other words, the only sense that an election comes into play is the one that
will ensue once these many tasks are completed. And neither the commissioners nor the
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commission, it bears noting, will have an impact or influence on how that election is
administered. As the majority opinion thus seemingly acknowledges, it is quite a jurisprudential
leap to view this case through Anderson-Burdick’s election-focused lens. See Majority Op. at
10, 12 (noting that Anderson-Burdick “may apply” here because the law in question “could
conceivably be classified as an ‘election law’”).
Fairly understood, today’s case raises a question regarding Michigan’s chosen means of
self-governance, not its election mechanics. Unlike the narrow set of election cases in which the
right to vote arguably is at issue, this case, and others like it, more broadly address limitations on
public service. See Citizens for Legislative Choice v. Miller, 144 F.3d 916, 924 (6th Cir. 1998)
(noting the difference between “election process” cases and term-limit cases, with the later
“implicat[ing] a different, and in some respects far more important interest: the State’s power to
prescribe qualifications for its officeholders”). And as there is “no federally protected interest in
seeking” public office, “Anderson and Burdick bear little weight” in resolving state law
limitations on public service, whether they limit service in a judicial position or as a districting
commissioner. Moncier v. Haslam, 570 F. App’x 553, 559 (6th Cir. 2014) (declining to apply
Anderson-Burdick to a challenge to state judicial qualifications law as the framework does not
“mandate[] that states organize their governments in a particular manner”); see also McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 344–45 (1995) (declining to apply Anderson-Burdick
where “we are not faced with an ordinary election restriction”); Schmitt v. LaRose, 933 F.3d 628,
644 (6th Cir. 2019) (Bush, J., concurring) (noting that “this circuit has generally limited the
application of Anderson and Burdick to . . . laws that burden candidates from appearing on the
ballot”); Bates v. Jones, 131 F.3d 843, 859 (9th Cir. 1997) (Rymer & O’Scannlain, JJ.,
concurring) (“I would not start by analyzing Proposition 140 under the Anderson/Burdick test,
because terms limits are a qualification for office—not for access to the ballot.”). If Anderson-
Burdick can be stretched this far, why would it not reach any situation that tangentially touches
elected office? Laws, for instance, that regulate campaign finance, the conduct of legislators, or
the terms of service of elected judges. Seemingly none would be immune from Anderson-
Burdick’s growing reach.
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 34
The temptation to overindulge in the Anderson-Burdick test has not gone unnoticed. For
example, although we have frequently applied Anderson-Burdick in resolving Equal Protection
claims, we recently questioned “whether the Supreme Court ever intended Anderson-Burdick to
apply to Equal Protection claims,” as the Supreme Court has “only applied the framework in the
context of generally applicable laws.” Mays v. LaRose, 951 F.3d 775, 783 n.4 (6th Cir. 2020).
One reason Anderson-Burdick is a poor vehicle in that context is that it can take “some legal
gymnastics to quantify the ‘burden’ that the State’s disparate treatment places on” one’s “right to
vote,” when a law treats groups differently, but does not necessarily “burden” either one. Id.; see
Crawford, 553 U.S. at 207 (Scalia, Thomas, & Alito, JJ., concurring) (“Insofar as our election-
regulation cases rest upon the requirements of the Fourteenth Amendment, weighing the burden
of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for
vulnerable voters would effectively turn back decades of equal-protection jurisprudence.”)
(internal citations omitted). Here too, the Michigan redistricting initiative has no actual impact
(let alone burden) on voting. Rather, it is an exercise in regulating the qualifications for public
service. In that setting, just as in the Equal Protection setting, we would be wise to forego
Anderson-Burdick.
My concern is more than conceptual. For Anderson-Burdick is a dangerous tool. In
sensitive policy-oriented cases, it affords far too much discretion to judges in resolving the
dispute before them. Anderson-Burdick relies on a sliding scale to weigh the burden a law
imposes against the corresponding state interests in imposing the law. See Crawford, 553 U.S. at
190; Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (“[W]e weigh . . . the
burden the State’s rule imposes on [First and Fourteenth Amendment] rights against the interests
the State contends justify that burden . . . .” (citing Burdick, 504 U.S. at 434)). We have thus
described “the Anderson-Burdick test” as a quintessential “balancing test.” Ohio Council 8 Am.
Fedn. of State v. Husted, 814 F.3d 329, 334–35 (6th Cir. 2016) (holding that “the state’s interest
is sufficient to outweigh that minimal burden”). But the test otherwise does little to define the
key concepts a court must balance, including when a burden becomes “severe.” See Crawford,
553 U.S. at 191 (stating that in prior cases the Supreme Court did not “identify any litmus test for
measuring the severity of a burden that a state law imposes on a political party, an individual
voter, or a discrete class of voters”); Buckley v. Am. Constitutional Law Found., 525 U.S. 182,
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 35
208 (1999) (Thomas, J., concurring) (“When an election law burdens voting and associational
interests, our cases are much harder to predict, and I am not at all sure that a coherent distinction
between severe and lesser burdens can be culled from them.”); Timmons, 520 U.S. at 359 (noting
that “[n]o bright line separates permissible election-related regulation from unconstitutional
infringements on First Amendment freedoms” (citing Storer v. Brown, 415 U.S. 724, 730
(1974))); Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016) (noting that “[t]he
distinction between ‘severe burdens’ and ‘lesser’ ones is often murky” (citing Buckley, 525 U.S.
at 207 (Thomas, J., concurring))). Absent stricter rules and guidelines for courts to apply,
Anderson-Burdick leaves much to a judge’s subjective determination.
Compare Anderson-Burdick to a more bright-line rule a court might employ in this
setting. Bright-line rules “have numerous advantages.” Alex Kozinski, My Pizza with Nino,
12 CARDOZO L. REV. 1583, 1588–89 (1990). One is predictability. Id.; see also Perdue v. Kenny
A. ex rel Winn, 559 U.S. 542, 551–52 (2010) (rejecting a 12-factor balancing test in favor of an
“objective” calculation that “cabins the discretion of trial judges, permits meaningful judicial
review, and produces reasonably predictable results”). Another is restraint: “they constrain
future decisionmakers so they cannot introduce their own personal preferences into the
decision.” Kozinski, supra, at 1589. Yet another is that “they enhance the legitimacy of
decisions because they make it clear to the litigants that their case was decided through neutral
application of a rule rather than on the basis of a judge’s personal preference.” Id.; see also
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 136 (2014) (declining to
apply a balancing test to determine if a plaintiff can sue under the Lanham Act as “experience
has shown that . . . open-ended balancing tests . . . can yield unpredictable and at times arbitrary
results”). With advance understanding of the legal rules to be applied, a state can govern
accordingly. See Crawford, 553 U.S. at 208 (Scalia, Thomas, & Alito, JJ., concurring) (“Judicial
review of [state legislatures’] handiwork must apply an objective, uniform standard that will
enable them to determine, ex ante, whether the burden they impose is too severe.”).
But advance understanding is not a virtue of Anderson-Burdick review. See id.(criticizing the lead opinion’s application of Anderson-Burdick because “[t]he lead opinion’s
record-based resolution of these cases . . . provides no certainty”); see also Edward. B. Foley,
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 36
Voting Rules and Constitutional Law, 81 GEO. WASH. L. REV. 1836, 1859 (2013). Rather, tests
like Anderson-Burdick allow a judge “easily [to] tinker[] with levels of scrutiny to achieve [his
or her] desired result.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016)
(Thomas, J., dissenting); see also United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J.,
dissenting) (noting that varying levels of scrutiny add “a further element of randomness” in “that
it is largely up to us which test will be applied in each case”). Anderson-Burdick’s “touchstone”
may well be “its flexibility in weighing competing interests,” Ohio Democratic Party v. Husted,
834 F.3d 620, 627 (6th Cir. 2016), but judicial flexibility in picking winners and losers in
sensitive disputes rarely furthers the interests of justice. See Antonin Scalia, The Rule of Law as
A Law of Rules, 56 U. CHI. L. REV. 1175, 1187 (1989) (noting that “balancing modes of analysis”
should “be avoided where possible”). In the name of “flexibility,” Anderson-Burdick risks
trading precise rules and predictable outcomes for the imprecision and unpredictability of how
the judicial-assignment wheel turns. Cf. Edwards v. Aguillard, 482 U.S. 578, 640 (1987) (Scalia,
J. & Rehnquist, C.J., dissenting) (arguing that the Supreme Court should “sacrifice some
‘flexibility’ for ‘clarity and predictability’” by “[a]bandoning Lemon’s purpose test”). Indeed,
one commentator has described Anderson-Burdick as “such an imprecise instrument that it is
easy for the balance to come out one way in the hands of one judge, yet come out in the exact
opposite way in the hands of another.” Foley, supra, at 1859. And that is especially worrisome
in the context of cases that, even in a deeply-attenuated sense, impact an election. In those
delicate matters, we should be hesitant to embrace a test so “indeterminate” that it results in “the
federal constitutional law that [supervises] the operation of a state’s electoral process ha[ving]
little objectivity or predictability.” Id.; see Hellerstedt, 136 S. Ct. at 2328 (Thomas, J.,
dissenting) (“The Court should abandon the pretense that anything other than policy preferences
underlies its balancing of constitutional rights and interests in any given case.”). I am thus
understandably reluctant to apply Anderson-Burdick even in resolving election disputes, let alone
extending it to today’s non-election setting.
A preferable means of “[j]udicial review of [a state’s] handiwork,” to my mind, would
“apply an objective, uniform standard” for measuring an election regulation. Crawford, 553 U.S.
at 208 (Scalia, Thomas, & Alito, JJ., concurring). For in the absence of objective limiting
principles, we risk “the validity of a doctrine” before us being resolved on the unbecoming basis
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 37
of “whose ox it gores.” Wells v. Simonds Abrasive Co., 345 U.S. 514, 525 (1953) (Jackson,
Black, & Minton, JJ., dissenting). Perhaps the best means of tempering that risk is judicial
decisionmaking that turns on the application of historical understandings and foundational
principles, as well as one that affords appropriate deference to a state’s strong interest in self-
governance. See Miller, 144 F.3d at 925 (identifying a “workable, deferential test for evaluating
state decisions regarding their governmental structure,” one that “grants the States the required
deference”).
2. In many respects, the majority opinion relies upon a framework based in history and
long-standing principles. Which takes me to an area of agreement and some relevant
background. Through a series of decisions, the Supreme Court has considered what standards a
court is to apply when considering challenges to the drawing of legislative district lines. The
most recent of those decisions explained that many of these disputes are non-justiciable political
questions, to be resolved by the political branches of government, not the federal courts. Rucho
v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019). In so holding, the Supreme Court
foreshadowed states “actively addressing [political gerrymandering] on a number of fronts,”
identifying those who already were “restricting partisan considerations in districting . . . by
placing power to draw electoral districts in the hands of independent commissions.” Id. at 2507.
Even before Rucho, Michigan had taken up that suggestion. Through a ballot initiative,
Michigan voters vested district-line-drawing duties in a citizen commission. Federal
constitutional litigation ensued. By virtue of that litigation, we are now asked to resolve whether
Michigan drew constitutionally-appropriate lines of qualification for its district line-drawers.
Just as there are no perfect electoral map lines, nor are there perfect lines delineating who
should undertake that line-drawing process. See id. at 2499–2501 (commenting on the difficulty
of defining a “fair” way to draw legislative lines). But whether a state’s task be district-line-
drawing or setting the rules for its elections, I (like the majority opinion) am reluctant to interfere
with a state’s effort to structure its system of government, to which we owe significant
deference, absent the infringement of a dramatic federal interest or a significant violation of
constitutional rights. See Crawford, 553 U.S. at 208 (Scalia, Thomas, & Alito, JJ., concurring)
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 38
(observing that “detailed judicial supervision of the election process would flout the
Constitution’s express commitment of the task to the States. See Art. I, §4”).
Time and again, the Supreme Court has reminded us to afford appropriate deference to
the policy decisions of a sovereign state in structuring its government, including how it seeks to
administer elections. See, e.g., Crawford, 553 U.S. at 181 (upholding an Indiana voter
identification law); N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) (upholding
New York’s convention system for selecting a party’s judicial nominees); Clingman v. Beaver,
544 U.S. 581 (2005) (upholding Oklahoma’s semi-closed primary system); Gregory v. Ashcroft,
501 U.S. 452 (1991) (upholding age limits for state judges); see also Rucho, 139 S. Ct. at 2506–
07 (holding that “partisan gerrymandering claims present political questions beyond the reach of
the federal courts”); accord Brief of Amicus Curiae Brennan Center for Justice, at 24 (noting
“Michigan’s fundamental interest in ensuring free and fair elections for Michigan voters”).
Generally speaking, our Court has fairly honored those state interests. See Mays, 951 F.3d at
787, 792 (upholding Ohio’s absentee ballot regulations in the face of a constitutional challenge
and noting “several justifications for Ohio’s disparate treatment of confined electors” and
“Ohio’s interest in orderly election administration”); George v. Hargett, 879 F.3d 711, 730 (6th
Cir. 2018) (upholding Tennessee law on vote-counting method partially because “any [] ‘burden’
was reasonably justified by the State’s interest in ensuring that a proposed constitutional
amendment enjoy widespread support as a prerequisite to adoption”); Comm. to Impose Term
Limits on the Ohio Supreme Ct. v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018) (upholding
Ohio law requiring that a ballot initiative contain only a single proposed amendment in part
because of “legitimate and strong state interests”); Ohio Democratic Party, 834 F.3d at 635
(upholding a law cutting the number of days for early voting opportunities in view of “Ohio’s
proffered interests of preventing voter fraud, increasing voter confidence by eliminating
appearances of voter fraud, and easing administrative burdens on boards of elections,” which are
“undoubtedly important regulatory interests”) (internal quotations omitted); Ohio Council 8 Am.
Fedn. of State, 814 F.3d at 338 (upholding Ohio law precluding judicial candidates from listing
their party affiliation on general-election ballots in light of Ohio’s “important interest of reducing
partisanship in judicial elections”); Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 578 (6th
Cir. 2016) (recognizing “Kentucky’s interests in avoiding voter confusion, ballot overcrowding,
Nos. 19-2377/2420 Daunt et al. v. Benson et al. Page 39
and frivolous candidacies” in upholding a 2% automatic ballot-access law); Estill v. Cool, 320 F.
App’x 309, 311–12 (6th Cir. 2008) (per curiam) (upholding Ohio ballot-access-restriction law as
it furthered “Ohio’s interest in ensuring qualified Sheriff candidates”); Miller, 144 F.3d at 925(upholding legislative term limits for state legislators on the basis of Michigan’s compelling
interest “in structuring its government”). Whether the state practice relates to structuring its
government through limits on state legislative terms or the use of a redistricting commission, or
whether the state practice hews more closely to traditional election mechanics, such as verifying
who is voting or setting the amount of time for doing so, we owe deference to the strong state
interests at play, absent a clear constitutional command to the contrary. See Crawford, 553 U.S.
at 191 (noting that three separate state interests justified the imposition of voter ID law’s
burdens); Ohio Democratic Party, 834 F.3d at 626, 632; but see Ohio State Conf. of the NAACP
v. Husted, 769 F.3d 385 (6th Cir. 2014) (finding likely constitutional violation despite State’s
strong interest in establishing the terms of early voting), vacated by Husted v. Ohio State Conf. of
the NAACP, 573 U.S. 988 (2014).
We heed that instruction again today. In upholding Michigan’s decision to organize its
system of government through the use of a bipartisan redistricting commission, we honor our
nation’s historical deference to a state’s interest in self-government, something the Supreme
Court has routinely emphasized in upholding the most analogous state laws to have come before
it.
Conflict-of-Interest Laws. In Nev. Comm’n on Ethics v. Carrigan, the Supreme Court
upheld a state conflict-of-interest law restricting a policymaker’s participation in the
governmental process. 564 U.S. 117 (2011). At issue in Carrigan was a Nevada law prohibiting
legislators from voting on, or advocating for, issues in which they were thought to have a conflict
of interest. Id. at 119. Critical to the Supreme Court’s resolution was the understanding that “[a]
universal and long-established tradition of prohibiting certain conduct creates a strong
presumption that the prohibition is constitutional . . . .” Id. at 122. In upholding the law, the
Supreme Court thus emphasized our nation’s long history of conflict-of-interest regulations, both
at the state and federal level, that preclude individuals from participating in the governmental
process. Id. at 122–25 (noting that “[f]ederal conflict-of-interest rules . . . date back to the
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founding” and that “[a] number of States, by common-law rule, have long required recusal of
public officials with a conflict”). Contrary decisions cited by Carrigan, the Supreme Court
explained, even if “relevant,” would nonetheless “be too little and too late to contradict the long-
recognized need for legislative recusal.” Id. at 125; see also Richardson v. Ramirez, 418 U.S.
24, 48 (1974) (upholding a state law barring felons from voting based upon the fact that, at the
time of the adoption of the Fourteenth Amendment, “29 States had provisions in their
constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise
by persons convicted of felonies or infamous crimes”).
As Carrigan demonstrates, historic foundational practices are a consistent benchmark for
assessing whether a state action is constitutional. And in that respect, Carrigan’s lessons apply
here twofold. One, conflict-of-interest regulations have a long historical pedigree, which
bolsters their constitutionality. Michigan no doubt had those historical concepts in mind when it
restricted from its line-drawing commission those whom the State believed were most likely to
have biased or improper motivations. As those efforts accord with longstanding practices more
generally, Carrigan, 564 U.S. at 122–25, I see no reason for a federal court to second guess
Michigan’s decision. See Kraham v. Lippman, 478 F.3d 502, 504 (2d Cir. 2007) (upholding a
New York judicial rule that limited “high-ranking political party officials, their families, and the
members, associates, counsel, and employees of their law firms from receiving New York State
court fiduciary appointments”).
Two, Carrigan more broadly reminds us of the respect we owe state decisionmaking.
Few if any foundational practices are more cherished than the dual-sovereign system upon which
our Republic was established. Printz v. United States, 521 U.S. 898, 918 (1997). In this system,
“the States . . . retained a ‘residuary and inviolable sovereignty.’” Id. at 918–19 (quoting The
Federalist No. 39, at 245 (J. Madison)); see also Oregon v. Mitchell, 400 U.S. 112, 124 (1970)
(“[T]he Constitution was also intended to preserve to the States the power that even the Colonies
had to establish and maintain their own separate and independent governments . . . .”). That
inviolable sovereignty affords states the opportunity to act as “laboratories of democracy,”
crafting rules and practices tailored to their unique political and cultural settings. Garber v.
Menendez, 888 F.3d 839, 844 (6th Cir. 2018). When a state exercises its sovereign power
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through its chosen structure and composition of government, we must respect that expression of
sovereignty, unless “the Constitution itself demands otherwise.” Mitchell, 400 U.S. at 124. And
here, that is all Michigan desires to do: set regulations for its self-governance. With an eye to
longstanding principles, we appropriately defer today to Michigan’s preferred method of self-
governance.
Limitations on Officeholders and Public Employees. History compels the same result as
to a state’s limitations on public employment, including those who hold public office. In
Clements v. Fashing, 457 U.S. 957 (1982), the Supreme Court upheld, against First and
Fourteenth Amendment challenges, a state law requiring Texas officeholders to complete their
current terms of office (if the term overlaps with terms of legislators) before they may serve in
the Texas Legislature. Like limitations on candidates to serve on a state redistricting
commission, the existence of barriers to a candidate’s access to the ballot “does not of itself
compel close scrutiny.” Id. at 963 (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
Although the law at issue in Clements prohibited certain public officials from running for the
Texas Legislature for two years, that prohibition was easily justified by the State’s “interests in
maintaining the integrity of” its current officeholders, “ensuring they will neither abuse [their]
position[s] nor neglect [their] duties because of [their] aspirations for higher office.” Id. at 968.
That includes counteracting the temptation “to render decisions and take actions that might serve
more to further [one’s] political ambitions than the responsibilities of his office.” Id. And it
matters not that a State’s regulatory regime addresses some issues, but not others. For
Fourteenth Amendment purposes, “the Equal Protection Clause allows the State to regulate ‘one
step at a time, addressing itself to the phase of the problem which seems most acute.’” Id. at 969
(quoting Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489 (1955)). A State thus “need
not run the risk of losing an entire remedial scheme simply because it failed, through
inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” Id. at
969–70 (quoting McDonald v. Bd. of Election Comm'rs, 394 U.S. 802, 809 (1969)).
Like conflict-of-interest rules, limitations on who may serve in public office are as old as
the Republic. At the founding, the Framers incorporated age requirements for holding federal
office: 25 for the House of Representatives, 30 for the Senate, and 35 for the President.
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U.S. CONST. art. I, § 2, cl 2, art. I, § 3, cl 3, art. II, § 1, cl 5. The Framers placed citizenship and
habitation requirements on service in the House and Senate, and a natural-born-citizenship
requirement on who can be elected President. See id. Likewise, the Framers established unique
measures for selecting members to the two houses of Congress: one chosen by the voters, one by
the state. Compare U.S. CONST. art. I, § 2, cl 1 (“The House of Representatives shall be
composed of Members chosen every second Year by the People of the several States . . . .”), with
U.S. CONST. art. I, § 3, cl 1 (“The Senate of the United States shall be composed of two Senators
from each State, chosen by the Legislature thereof . . . .”), abrogated by U.S. CONST. amend.
XVII). And the Framers also deemed it necessary to limit federal elected officials to one office
at a time. See U.S. CONST. art. I, § 6, cl 2 (“No Senator or Representative shall, during the Time
for which he was elected, be appointed to any civil Office under the Authority of the United
States . . . and no Person holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.”).
So too for limitations on a broader range of public servants. The Supreme Court has
repeatedly upheld limitations on the conduct of unelected public employees as well. For
instance, the Supreme Court upheld the Hatch Act’s “restrictions on federal employees’ political
activities,” and it did the same for “challenges to state statutes that impose similar restrictions on
state employees.” Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 656 (6th Cir. 2008)
(collecting cases). In so doing, the Supreme Court rooted its reasoning in our nation’s historical
practice. The Hatch Act’s restrictions, it explained, “no more than confirm the judgment of
history, a judgment made by this country over the last century that it is in the best interest of the
country, indeed essential, that federal service should depend upon meritorious performance
rather than political service . . . .” U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers,
413 U.S. 548, 557 (1973). To the same end, in applying the Hatch Act to a state employee
whose agency received federal funds, we noted that “[t]he [Hatch] Act’s prohibition on
candidacy for elective office is rationally related to the government’s interest because it allows
the government to remove actual or apparent partisan influence from the administration of
federal funds.” Molina-Crespo, 547 F.3d at 654, 658.
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All of this is in accord with the longstanding history of and deference to the state interest
at issue today—how a state selects its officeholders, in this case, its redistricting commissioners.
The authority of a state’s citizens to “determine the qualifications of their most important
government officials . . . is an authority that lies at ‘the heart of a representative government.’”
Ashcroft, 501 U.S. at 463 (quoting Bernal v. Fainter, 467 U.S. 216, 221 (1984)). And it should
go without saying that those state judgments are best made by the States, not unelected federal
judges. Accord Crawford, 553 U.S. at 208 (Scalia, Thomas, & Alito, JJ., concurring) (“It is for
[the] state . . . to weigh the costs and benefits of possible changes to their election codes . . . .”).
The Fifth Circuit emphasized this very point in upholding a Louisiana prohibition on dual-office
holding: “We do not doubt that the Louisiana Legislature could have drawn narrower definitional
lines. As has often been pointed out, however, courts are ill equipped to judge the wisdom of
such legislative line drawings.” Arceneaux v. Treen, 671 F.2d 129, 134 (5th Cir. 1982) (citing
N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 592–93 (1979)). States thus “deserve[]
deference in structuring [their] government”—in fact, the Constitution demands it. Miller,
144 F.3d at 925 (citing U.S. CONST. amend. X). Out of respect for the sovereignty of states, we
routinely defer to a state’s preference for structuring its government, for instance, whether one is
too old to serve in elected office, Ashcroft, 501 U.S. at 473 (finding a law restricting judicial
office seekers to those under 70 to be constitutional), or how long one may serve in a state office.
Miller, 144 F.3d at 924–25 (finding lifetime term limits constitutional and noting that we “should
uphold a qualification ‘unless the qualification is plainly prohibited by some other provision in
the Constitution’” (quoting Bates, 131 F.3d at 859 (Rymer & O’Scannlain, JJ., concurring))).
That structuring aspect is at play here in two respects. At issue is how Michigan selects
public officials to serve on a public body (the redistricting commission). And once selected,
those commissioners will assist in crafting the legislative districts from which other public
officials are chosen. That the Michigan electorate enacted the commission and its membership
rules directly only strengthens the rationale for allowing these restrictions to stand. See Ashcroft,
501 U.S. at 471 (upholding a voter-adopted state constitutional provision; “[w]e will not overturn
such a law unless the varying treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can only conclude that the
people’s actions were irrational”) (internal edits omitted). Michigan voters decided to prohibit
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those they deemed to be “political insiders” from drawing legislative lines. Whether one views
that decision for the better or worse, it plainly is not “irrational.” Id.That is why, setting aside my disagreement over Anderson-Burdick, it is refreshing to see
the Court embrace as a central principle a state’s prerogative in organizing its government,
including its election system. That principle is a paramount aspect of state sovereignty, and a
cornerstone of federalism.
For these reasons, I concur in today’s result.