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Case Name Michigan State A. Philip Randolph Institute et. al. v. Johnson VR-MI-0073
Docket / Court 2:16-cv-11844-GAD-MKM ( E.D. Mich. )
State/Territory Michigan
Case Type(s) Election/Voting Rights
Attorney Organization ACLU of Michigan
Case Summary
On May 24, 2016, the Michigan State A. Philip Randolph Institute and three Michigan voters filed this lawsuit in the United States District Court for the Eastern District of Michigan. The plaintiffs sued the Michigan Secretary of State under 42 U.S.C. § 1983, Section 2 of the Voting Rights Act of 1 ... read more >
On May 24, 2016, the Michigan State A. Philip Randolph Institute and three Michigan voters filed this lawsuit in the United States District Court for the Eastern District of Michigan. The plaintiffs sued the Michigan Secretary of State under 42 U.S.C. § 1983, Section 2 of the Voting Rights Act of 1965, and Title II of the Americans with Disabilities Act. The plaintiffs, represented by private counsel, sought declaratory and injunctive relief to prevent enforcement of Michigan's 2015 Public Act 268, which eliminated straight party voting. The plaintiffs claimed that PA 268 violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, Section 2 of the VRA, and the ADA. Specifically, they claimed that by abolishing straight party voting, PA 268 unreasonably burdened the right to vote of all Michigan citizens, unreasonably and disproportionately burdened the right to vote of African American citizens, and denied and abridged the right to vote of African Americans because of their race.

On May 27, 2016, plaintiffs filed a motion for a preliminary injunction to prevent enforcement of PA 268, which they followed on June 1, 2016, with their first amended complaint that added the Common Cause nonprofit as another plaintiff. Judge Gershwin A. Drain issued an opinion and order granting a preliminary injunction on July 21, 2016, amended on July 22. Judge Drain found that:

1. PA 268 places a "disproportionate burden on African Americans' right to vote," so plaintiffs will likely succeed on the merits.

2. "When constitutional rights are threatened or impaired, irreparable injury is presumed."

3. Defendant will not be significantly harmed by an injunction, which would only result in the state using ballot procedures that it has used for many years past.

4. The public interest in protecting the right to vote exceeds the state's interest in changing its voting system.

Judge Drain also rejected defendant's arguments against the injunction, concluding that plaintiffs did not delay filing the lawsuit, either purposefully or through lack of diligence. The lawsuit was appropriately filed in federal court because plaintiffs alleged federal claims, that state control of elections did not remove constitutional limits on how they may do so, and that plaintiffs had standing because they reasonably argued that the statute would disproportionately impact them as individuals. However, Judge Drain questioned the sustainability of plaintiff's allegation that PA 268 violated the ADA because "[n]one of the listed Plaintiffs are described as having any disabilities as recognized by the ADA." 209 F.Supp.3d 935.

Over the next month, defendant sought an order from the Sixth Circuit Court of Appeals striking down the preliminary injunction but was unable to persuade Judge Drain to stay the injunction pending appeal. On August 17, 2016, Circuit Judge Karen Nelson Moore, joined by Judges Gilman and Stranch, denied defendant's motion for a stay of the preliminary injunction pending appeal. Using the same four-factor analysis as Judge Drain, Judge Moore found that the District Court did not abuse its discretion by granting the injunction. Judge Gilman wrote separately to emphasize that the Circuit Court's decision was not a final judgment on the merits. Finally, on September 19, 2016, the Sixth Circuit granted defendant's motion to withdraw their appeal against the preliminary injunction. 833 F.3d 656.

Possibly due in part to the defects of their original ADA claim, plaintiffs moved for leave to modify their complaint on November 14, 2016. Plaintiffs sought to remove their allegation that PA 268 violates the ADA, add an allegation that PA 268 intentionally discriminated against African Americans, and add an allegation that PA 268 violated the First Amendment. On January 19, 2017, Judge Drain issued an order and opinion granting in part and denying in part plaintiff's motion to amend the complaint. In particular, Judge Drain:

1. Approved plaintiff's request to remove their ADA claim,

2. Approved plaintiffs' request to add a count of intentional discrimination under Sixth Circuit precedent "demonstrat[ing] that multiple Equal Protection claims can co-exist within the same cause of action," and

3. Denied plaintiffs' request to add a First Amendment claim because "[p]laintiffs fail to cite a single relevant authority to support this argument." 2017 WL 3390364.

On January 26, 2017, plaintiffs filed their second amended complaint with these changes.

After several months of procedural battles, defendant filed a motion for summary judgment on October 16, 2017. On January 19, 2018, Judge Drain rejected defendant's summary judgment motion. In a detailed opinion based on voluminous expert reports and social science research, Judge Drain found that PA 268 created "more than a minimal" burden on African Americans and that "reasonable minds may disagree" about PA 268's impact. Thus, Judge Drain declared summary judgment inappropriate. However, Judge Drain held that the white plaintiff lacked standing because she did not allege a particularized injury. 2018 WL 493184.

Following the denial of defendant's summary judgment motion and disputes between plaintiffs and the defendant regarding admissibility of certain types of evidence, the case was tried before Judge Drain. On August 1, 2018, Judge Drain delivered an opinion on the merits and issued a permanent injunction against PA 268. 2018 WL 3640439. Judge Drain's amended opinion of August 9, 2018, included findings of fact that PA 268 would "increase wait times" for all voters and "disproportionately" affect African Americans who used straight-party voting at higher rates than whites. In addition, Judge Drain found that PA 268 would reduce voting across all demographics and "disproportionately deter" African Americans. As a result, Judge Drain held that:

1. PA 268 violates the Equal Protection Clause because the state's interest in regulating its own elections does not outweigh the burden PA 268 placed on African Americans' voting rights.

2. Michigan "intentionally discriminated" against African Americans by enacting PA 268, thus violating the Equal Protection Clause.

3. PA 268 violates Section 2 of the Voting Rights Act because it "links with social and historical conditions of discrimination" to disparately impact African Americans. 2018 WL 3769326.

Following Judge Drain's ruling, defendant appealed to the Sixth Circuit and requested from the District Court a stay of the injunction pending appeal. Judge Drain denied the stay on August 23, 2018. 2018 WL 4024895. However, Circuit Judge Boggs, joined by Judge Kethledge, overruled the District Court and issued a stay on September 5, 2018. Applying the same four-factor test that Judge Drain used to issue the original preliminary injunction but reaching the opposite conclusion, Judge Boggs questioned the opinion's "factual underpinnings and . . . legal analysis," and said defendants established a "likelihood of reversal." Judge Kethledge issued a concurring opinion in which he stated that racial animus does not follow from the fact that PA 268 will likely benefit Republicans. Judge Donald dissented, arguing that the majority neither adequately consider the history of voting discrimination nor gave enough deference to the trial court's findings before granting the stay. The appeal on the merits is ongoing at the Sixth Circuit.

Timothy Leake - 10/04/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Content of Injunction
Preliminary relief granted
Discrimination-basis
Race discrimination
General
Voting
Voting access
Plaintiff Type
Private Plaintiff
Race
Black
Voting
Election administration
Causes of Action 42 U.S.C. § 1983
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Voting Rights Act, section 2, 42 U.S.C. § 1973
Defendant(s) Michigan Secretary of State
Plaintiff Description The Michigan State A. Philip Randolph Institute, a division of the AFL-CIO dedicated to advancing racial equality and economic justice. Common Cause, a nonprofit corporation and democracy organization. An African American lifelong voter. A white social justice activist and registered voter. An African American voter who uses the straight party option in elections.
Indexed Lawyer Organizations ACLU of Michigan
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Order Duration 2016 - 2018
Filing Year 2016
Case Ongoing Yes
Docket(s)
2:16-cv-11844 (E.D. Mich.)
VR-MI-0073-9000.pdf | Detail
Date: 09/05/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief [ECF# 1]
VR-MI-0073-0001.pdf | Detail
Date: 05/24/2016
Source: PACER [Public Access to Court Electronic Records]
Amended Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction [4] [ECF# 25] (E.D. Mich.)
VR-MI-0073-0002.pdf | Detail
Date: 07/22/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Denying Defendant's Motion to Stay Preliminary Injunction [29] [ECF# 39] (E.D. Mich.)
VR-MI-0073-0003.pdf | Detail
Date: 08/15/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 40]
VR-MI-0073-0004.pdf | Detail
Date: 08/17/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Granting in Part and Denying in Part Plaintiffs' Motion for Leave to File a Second Amended Complaint [46] [ECF# 55] (E.D. Mich.)
VR-MI-0073-0005.pdf | Detail
Date: 01/19/2017
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint for Declaratory and Injunctive Relief [ECF# 56]
VR-MI-0073-0006.pdf | Detail
Date: 01/26/2017
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Denying Defendant's Motion for Summary Judgment [102] [ECF# 124] (E.D. Mich.)
VR-MI-0073-0007.pdf | Detail
Date: 01/19/2018
Source: PACER [Public Access to Court Electronic Records]
Amended Opinion and Order Granting Plaintiffs' Request for Permanent Injunction Relief [ECF# 153] (E.D. Mich.)
VR-MI-0073-0008.pdf | Detail
Date: 08/09/2018
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Denying Emergency Motion for Stay Pending Appeal [156] [ECF# 160] (E.D. Mich.)
VR-MI-0073-0009.pdf | Detail
Date: 08/23/2018
Source: PACER [Public Access to Court Electronic Records]
Order [Ct. of App. ECF# 162]
VR-MI-0073-0010.pdf | Detail
Date: 09/05/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Drain, Gershwin Allen (E.D. Mich.)
VR-MI-0073-0002 | VR-MI-0073-0003 | VR-MI-0073-0005 | VR-MI-0073-0007 | VR-MI-0073-0008 | VR-MI-0073-0009 | VR-MI-0073-9000
Majzoub, Mona K. (E.D. Mich.) [Magistrate]
VR-MI-0073-9000
Plaintiff's Lawyers Brewer, Mark C. (Michigan)
VR-MI-0073-0001 | VR-MI-0073-0006 | VR-MI-0073-9000
Gurewitz, Mary Ellen (Michigan)
VR-MI-0073-0001 | VR-MI-0073-0006 | VR-MI-0073-9000
Defendant's Lawyers Asbenson, Kendall S. (Michigan)
VR-MI-0073-9000
Barton, Denise C. (Michigan)
VR-MI-0073-9000
Briggs, Elizabeth R. Husa (Michigan)
VR-MI-0073-9000
Fracassi, Adam L.S. (Michigan)
VR-MI-0073-9000
Grill, Erik A. (Michigan)
VR-MI-0073-9000
Ho, Joseph Yung−Kuang (Michigan)
VR-MI-0073-9000
Wood, Rock A (Michigan)
VR-MI-0073-9000

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