BSP Law Secures a Stay from the Sixth Circuit Court of Appeals for Michigan Legislature

On October 21, 2020, the Michigan Legislature, represented by BSP Law, secured a stay from the Sixth Circuit Court of Appeals, undoing an injunction that the district court had issued previously and allowing the enforcement of a crucial protection of Michigan’s elections.  This win built upon one earlier in the case where the district court had refused to enjoin another election-security statute.

In November 2019, Plaintiffs Priorities USA, Rise Inc., and The Detroit/Downriver Chapter of the A. Philip Randolph Institute, sued Attorney General Dana Nessel, challenging MCL 168.759(4), (5), (8) and MCL 168.931(1)(f) as unconstitutional and preempted by the Federal Election Campaign Act (“FECA”).  MCL 168.759(4), (5), (8) allows only registered electors to return an absentee ballot application and prevents individuals from “soliciting or requesting to return” others’ applications.  MCL 168.931(1)(f) prohibits paying a third-party to transport voters (except the disabled) to vote. 

The Michigan Legislature intervened as defendants.  In September, the district court refused to enjoin enforcement of the application-harvesting ban, reasoning that Plaintiffs would probably lose on the merits.  It did, however, enjoin the paid transportation ban as likely being preempted by federal law.  The Legislature appealed and moved to stay the injunction.

In a published opinion, the Sixth Circuit agreed completely with the Legislature.  It first held that the Legislature had standing both in its own right and in place of the executive branch.  Second, it said, Plaintiffs had no chance of succeeding on the merits.  Because MCL 168.931(1)(f) prevents “vote-hauling”—a kind of disguised vote buying where a voter is paid to transport herself or close friends or family to the polls—it falls under FECA’s anti-fraud exemption to preemption.  The court also fully adopted the Legislature’s urged reading of MCL 168.931(1)(f).  Third, the court agreed with the Legislature that Plaintiffs would suffer little to no harm from MCL 168.931(1)(f)’s enforcement, while the Legislature and public would suffer harm from its enjoinder.