Several weeks ago, we learned that Congressman John Conyers had most likely failed to qualify for the primary ballot in Michigan, a fact which was later affirmed by election officials in Detroit. Conyers filed an administrative appeal of that decision, but lost that appeal in a decision issued yesterday morning. Later in the day, however, a Federal District Court Judge issued a ruling late yesterday ordering that Conyers, who was first elected to Congress in 1964, be placed back on the ballot due to the fact that the rule under which the majority of his nominating signatures were invalidated was most likely unconstitutional:
Representative John Conyers Jr. of Michigan narrowly escaped a political fiasco on Friday when a federal judge granted him a place on the Democratic primary ballot in August, allowing him to survive a campaign misstep that left him hundreds of valid signatures short on his petitions for re-election.
Mr. Conyers, a Detroit Democrat who was first elected in 1964, had found his re-election prospects at risk when his campaign failed to collect the required 1,000 valid signatures. At least two workers collecting them were not properly registered to vote, another violation of state law. What initially appeared to be a minor mistake quickly became a grievous error that threatened the career of one of the most senior members of Congress, who is a founder of the Congressional Black Caucus and the ranking Democrat on the House Judiciary Committee.
In his ruling on Friday, Judge Matthew F. Leitman of Federal District Court said that the “failure to comply with the registration statute was the result of good-faith mistakes.”
“They believed they were in compliance with the statute,” the judge wrote.
Judge Leitman added that the First Amendment rights of Mr. Conyers and the signature collectors working for his campaign were “severely burdened” under the current law.
The news, which arrived after a day of anxious waiting, was met with relief by the congressman’s supporters, said Bert Johnson, a state senator who is running Mr. Conyers’s campaign. Mr. Conyers, who is 85 and running for his 26th term, was “pretty happy” with the outcome, Mr. Johnson said.
Just hours earlier, the Michigan secretary of state, Ruth Johnson, had rejected an appeal from the campaign.
But after Judge Leitman’s decision, Mr. Conyers “had a nice smile,” Mr. Johnson said. “We believe it’s a very big win for the voters. It puts one of the more ugly parts of the campaign process behind us.”
(…)
Mr. Conyers’s lawyers mounted a challenge in federal court, saying Wednesday that the judge should throw out a state law requiring petition collectors to be registered to vote, arguing that the law violated the First Amendment. They cited an appeals court decision from 2008, Nader v. Blackwell, that struck down a similar law in Ohio.
On Wednesday, Judge Leitman seemed to struggle with the decision, calling it “an exceptionally difficult case.”
A lawyer for Mr. Conyers, John D. Pirich, said during the hearing on Wednesday that it would be “pretty outrageous” to make Mr. Conyers pay for technicalities involving the voter registrations of two signature collectors.
Experts in election law said Judge Leitman’s favorable ruling was not surprising considering the case’s similarities to Nader v. Blackwell, in which a panel of judges agreed that imposing voter registration requirements on signature circulators in Ohio was an impermissible restriction on political speech.
On some level, this is not all that surprising. When they’ve been presented with similar questions in the past, Federal Courts have ruled that restrictions on ballot access that are aimed a limiting who can collect petition signatures for ballot access, whether for candidates or ballot initiatives, are unconstitutional unless they are narrowly tailored to achieve a compelling government interest. For example, in 1999 the Supreme Court dealt with a Colorado law that, among other things, required all petition circulators to be registered voters in the state. In ruling on those regulations, the Supreme Court said the following:
Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because “it is exceptionally easy to register to vote.” Reply Brief 5, 6; see Brief for Petitioner 30—31. The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register out of ignorance or apathy. See post, at 6 (O’Connor, J., concurring in judgment in part and dissenting in part). But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. See 1 Tr. 14 (testimony of ballot-initiative organizer Jack Hawkins). A lead plaintiff in this case, long active in ballot-initiative support-a party no doubt “‘able and willing’ to convey a political message,” cf. post, at 5 (O’Connor, J., concurring in judgment in part and dissenting in part)-testified that his refusal to register is a “form of … private and public protest.” 1 Tr. 223 (testimony of William Orr, executive director of ACLF). Another initiative proponent similarly stated that some circulators refuse to register because “they don’t believe that the political process is responsive to their needs.” Id., at 58 (testimony of Jon Baraga). For these voter-eligi In sum, assuming that a residence requirement would be upheld as a needful ible circulators, the ease of registration misses the point.
The State’s dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State’s subpoena power, which in these matters does not extend beyond the State’s borders. See Brief for Petitioner 32. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the “address at which he or she resides, including the street name and number, the city or town, [and] the county.” Colo. Rev. Stat. §1—40—111(2) (1998); see supra, at 4, n. 7. This address attestation, we note, has an immediacy, and corresponding reliability, that a voter’s registration may lack. The attestation is made at the time a petition section is submitted; a voter’s registration may lack that currency.
ACLF did not challenge Colorado’s right to require that all circulators be residents, a requirement that, the Tenth Circuit said, “more precisely achieved” the State’s subpoena service objective. 120 F.3d, at 1100. Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter. See Tr. of Oral Arg. 10, 14. The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section.
Integrity-policing measure-a question we, like the Tenth Circuit, see 120 F.3d, at 1100, have no occasion to decide because the parties have not placed the matter of residence at issue-the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.
In a concurring opinion, Justice Thomas made this telling comment:
Colorado primarily defends its registration requirement on the ground that it ensures that petition circulators are residents, which permits the State to more effectively enforce its election laws against those who violate them. The Tenth Circuit assumed, and so do I, that the State has a compelling interest in ensuring that all circulators are residents.Even so, it is clear, as the Court of Appeals decided, that the registration requirement is not narrowly tailored. A large number of Colorado’s residents are not registered voters, as the majority points out, ante, at 8—9, and the State’s asserted interest could be more precisely achieved through a residency requirement.
That distinction between laws that require petition circulators to be residents as opposed to registered voters has also been made in decisions issued by the Courts of Appeal in the Tenth Circuit, the Ninth Circuit, the Fourth Circuit, and most importantly for the Conyers case, the Sixth Circuit. In that case, Nader v. Blackwell, a three judge panel of the Sixth Circuit, of which Michigan is a part, ruled in part that an Ohio law that required petition circulators to be registered voters was “a severe restriction on political speech” and therefore invalid. As a result, the Court upheld a ruling that allowed Ralph Nader to appear on the 2008 ballot in Ohio, although it disallowed a claim by Nader for monetary damages against Ohio Secretary of State Ken Blackwell for his initial decision keeping Nader off the ballot. Given this case law, it was clear from the start that Conyers had a strong legal argument for being allowed on the ballot given the fact that, but for the invalidation of otherwise proper signatures that were obtained by circulators that were not registered voters, he would have had enough signatures to qualify to get on the ballot. Add into this the fact that the Nader decision is binding law in Michigan and it strikes me that Judge Leitman’s decision was seemingly inevitable.
Election law blogger Rick Hasan tends to agree, but he does raise one interesting issue that could potentially defeat Conyers bid to save his political future:
I had said that Conyers had a very strong argument that the law limiting petition circulators to residents was likely unconstitutional. The court agreed today, holding that the case was indistinguishable from earlier Sixth Circuit precedent, binding on the trial court, Nader v. Blackwell. The arguments that the state made to try to distinguish the Nader case seemed quite weak to me.
The big question in my mind was one of the doctrine of laches: did Conyers wait too long to raise this question? The trial court rejected the laches argument. Laches requires a showing of unreasonable delay in filing suit and prejudice. The judge found neither, noting that there was evidence the circulators who were not residents acted in good faith. (I’ve been a strong proponent ofgreater use of laches in election cases to prevent candidates from having an “option” to challenge rules only if they disadvantage them.)
We’ve seen the issue of laches used in these types of cases before. In late December 2011, we learned that Newt Gingrich, Michele Bachmann, Jon Huntsman, Rick Santorum, and Rick Perry had failed to qualify for the primary ballot in Virginia because they had failed to submit sufficient valid signatures to qualify for the ballot or, in some cases, simply failed to submit any nominating petitions at all. Virginia law at the time, and presently, requires Presidential candidates to submit 10,000 valid signatures from registered voters, including at least 400 from each of the Commonwealth’s 11 Congressional District. Perry and Gingrich, who had submitted signatures but later saw most of them invalidated, filed suit against the law claiming that the requirement that petition circulators be residents was unconstitutional. The Federal District Court and Appeals Court both ruled that Perry and Gingrich had waited too long to file their suit and thus were legally barred from raising their claims because they had waited too long to make their arguments. Instead of waiting until after they were disqualified, mere weeks before final ballots had to be printed and mailed to absentee and military voters, the Courts ruled that Perry and Gingrich should have filed suit against the requirements at the beginning of the process. Indeed, nearly a year after that lawsuit was filed a Federal Judge in Richmond ruled that the state residency requirement was in fact unconstitutional, but it was of course far too late to be of any use to Perry or Gingrich.
Reading through the opinion, it appears that the main reason that Judge Leitman didn’t find unreasonable delay in asserting a claim in the Conyers case is because he found that there had been a good faith belief on the part of the campaign that the circulators they were relying on were in fact registered voters. By contrast, in the Perry and Gingrich case the campaigns had essentially argued that, but for the residency requirement they would have been able to bring in out-of-state volunteers to help in the petition drive. In that case, the Court correctly found that this demonstrated that the campaigns knew from the start that they would have trouble complying with the law and thus should have known at that point that they had a legal right that should have been asserted. The same doesn’t appear to be true in the Conyers case. Since this finding of good faith is a finding of fact by the Judge, it will be difficult to overturn on appeal.
What happens next depends largely on what the State of Michigan decides to do, but the outcome seems foreordained in either case. They could decide to appeal the case on an expedited basis, but the Sixth Circuit’s ruling in the Nader case makes it rather obvious how an appeal would turn out here, it would most likely result in a ruling that the registered voter requirement is unconstitutional, affirming Judge Leitman’s ruling. Alternatively, they could decide not to appeal. In either case, in the end, I expect that Congressman Conyers will be on the ballot for the Michigan Primary and I think that, under the law, this is the correct outcome.
Here’s the opinion:
