CINCINNATI (CN) – The state of Michigan argued before an appeals court panel Wednesday that its signature and deadline requirements for independent candidates to get on the ballot are constitutional and a federal judge lacked authority to change them.
Christopher Graveline wanted to make a run for Michigan attorney general in 2018, but as an independent candidate. Under the state’s election laws, this required him to obtain at least 30,000 signatures in a six-month period leading up to the election and deploy “petition circulators” in half of Michigan’s congressional districts.
The task was too much for Graveline and his staff. They came up with only half of the required number of signatures, which meant he would be left off the ballot for the general election.
Graveline and several voters filed suit against Michigan Secretary of State Jocelyn Benson, claiming the state’s procedures were unconstitutional. A federal judge agreed and issued a permanent injunction that invalidated several election laws, which led to the state’s appeal to the Sixth Circuit.
U.S. District Judge Victoria Roberts, an appointee of Bill Clinton, said in her December 2019 opinion that Graveline’s case “involves some of our most fundamental rights and goes to the heart of effective participation in the election process.”
Roberts ruled the burden imposed by the requirements was severe enough to warrant an injunction, as demonstrated by the fact that no independent candidate for a statewide office has appeared on the ballot since the rules were first imposed in 1988.
“The court finds that the state’s election laws ‘operate to freeze the political status quo,’ and effectively bar independent candidates from accessing the ballot,” she wrote.
In its brief to the Cincinnati-appeals court, Michigan argued Graveline’s failure to obtain the required number of signatures stemmed from his refusal to use the full six-month collection period.
The state said Roberts “ignored Graveline’s inexplicable delay” and then “supplanted the role of the legislature” when she struck down the laws and established a new threshold of just 12,000 signatures with the permanent injunction.
Assistant Attorney General Erik Grill argued on behalf of the state Wednesday. He told the Sixth Circuit panel Roberts should not have decided the case because it became moot after the 2018 election.
A preliminary injunction put Graveline on the ballot that year but Grill said there is no evidence he intends to run again, which deprived him of standing to pursue his claims, which were made in the form of an “as-applied” challenge to the statute.
U.S. Circuit Judge Karen Moore, a Clinton appointee, asked Grill whether Graveline’s delay in collecting signatures was reasonable as a means to gather more information about potential candidates from the major political parties.
He said current Attorney General Dana Nessel had been nominated and the Republican Party had also narrowed down its candidates well before the start of Graveline’s signature collection efforts.
Attorney Oliver Hall argued on behalf of Graveline and was questioned by U.S. Circuit Judge Richard Griffin throughout his 15 minutes of allotted time.
Griffin, a George W. Bush appointee, asked Hall why his client is set on defending the permanent injunction and 12,000-signature standard when he was already granted the relief he sought by being placed on the 2018 ballot.
“The plaintiffs still have an interest in participating in elections … without an unconstitutional statutory scheme being imposed upon them,” the attorney answered.
Griffin moved on to the level of scrutiny applied by the district court and cited this year’s Sixth Circuit decision in Kishore v. Whitmer, a case that denied independent presidential candidates an injunction for placement on the 2020 ballot.
The candidates in Kishore sought to invalidate signature requirements because of the Covid-19 pandemic and stay-at-home orders, and the federal judge who decided the case applied intermediate scrutiny.
Griffin asked Hall why he and the other judges on the panel should not require the same level of scrutiny in the current case, which deals with the same election laws.
The attorney reminded Griffin that the so-called Anderson-Burdick test used by Roberts is not a “litmus test” but rather a fact-based analysis, and pointed out that his client’s case has nothing to do with the Covid-19 pandemic.
Hall circled back to the difficulties imposed on independent candidates under Michigan law at the conclusion of his argument. He told the panel that “in order to have any chance to comply, a candidate would have to … campaign full-bore from day one.”
Grill used his rebuttal time to remind the judges that Roberts was not required to impose the 12,000-signature requirement and could have given the legislature time to act because there was no impending election at the time of her decision.
“The requirement is untethered to the legal standard we’re expected to apply and provides no guidance to the legislature,” he said.
Senior U.S. Circuit Judge Ronald Gilman, another Clinton appointee, also sat on the panel. No timetable has been set for the court’s decision.