Victory!

Michigan voters overwhelmingly passed Proposal 3 in 2018, which enshrined in Michigan’s Constitution the right to vote an absentee ballot in the 40 days before an election, either at home by mail or in person at the voter’s local clerk’s office. In the weeks leading up to the August 2020 primary election, however, the city clerk’s office in Flint remained closed to the public, preventing voters from exercising their constitutional right to obtain and cast their absentee ballots in person. And Flint voters who had requested their absentee ballots by mail were not receiving them, despite a state-law requirement that clerks issue absentee ballots immediately upon receiving a voter’s request.

In July 2020 the ACLU of Michigan filed an emergency lawsuit against the Flint city clerk to prevent the disenfranchisement of thousands of Flint voters. Following a two-day hearing, Judge Celeste Bell ruled that the city clerk was violating her clear legal duties under the Michigan Constitution and state election law, and ordered the clerk to have her office open to the public every day until the election and to process all applications for absentee ballots within 24 hours of receipt. In September 2020 we asked the judge to rule that the same requirements applied to the general election in November.

(Barkey v. Brown; ACLU Attorneys Dan Korobkin, Sharon Dolente and Phil Mayor; Cooperating Attorneys Alec Gibbs and Muna Jondy, and Shankar Duraiswamy and Sarah Suwanda of Covington & Burling.) 

In normal times, Michigan requires that candidates for some public offices collect a specified number of petition signatures from voters in their district in order to for their names to appear on the ballot. The theory behind the requirement is that candidates must show a “modicum of support” from the public in order to stand for election.

However, these are not normal times. During a pandemic, it is not safe to physically approach voters and ask for their signatures on a petition. And, since Governor Whitmer issued the stay-at-home executive order on March 23, it has been illegal to do so. Candidates facing an April 21 deadline to turn in petition signatures were facing an unfair choice: either give up the opportunity to run for political office, or violate the law and put public health at risk by collecting petition signatures from hundreds of voters.

On April 14, the ACLU of Michigan, working with the University of Michigan Law School’s Civil Rights Initiative, filed a friend-of-the-court brief in a federal lawsuit filed by a candidate running for Congress. We argued that during the unique circumstances presented by a dangerous pandemic, the signature requirement is unconstitutional because it severely burdens the constitutional rights of candidates and voters. On April 20, Judge Terrence Berg agreed with our analysis and enjoined the state from enforcing the signature requirement. Judge Berg ordered the state to cut the number of signatures required by 50 percent, extend the filing deadline until May 8, and implement a system for collecting signatures in digital form such as by email.

Anuja Rajendra came in third place last summer in the Democratic primary for a state senate seat. Just a few months later, she was facing criminal charges in Washtenaw County, and potentially up to 90 days in jail, for stating in a campaign mailer, “As a mom of four and as your State Senator, I want my kids and all kids in Michigan to have the same opportunity for quality education and success.”

Ms. Rajendra was charged under a state law that makes it a crime to “give the impression that a candidate for public office is the incumbent” when he or she is not. The ACLU of Michigan represented Ms. Rajendra, arguing that any law making political speech a crime is a blatant violation of the First Amendment, and that charging Ms. Rajendra under these circumstances was an outrageous abuse of prosecutorial discretion.

In January 2019 Judge Elizabeth Hines granted our motion to dismiss, ruling that the statute is unconstitutional on its face. When Judge Hines announced her ruling from the bench, the entire courtroom burst into applause.

(People v. Rajendra; ACLU Attorneys Michael J. Steinberg and Dan Korobkin; Cooperating Attorneys John Shea, David Blanchard, and Frances Hollander.)