Request for Progressive Assistance: UPDATE on Voter Suppression, Denial of Ballot Access, and First Amendment Violations in East Lansing, Michigan City Attorney Petition Update- ELCPSCA Files Reconsideration Motion // Jeffrey Hank -------------------------------------- Dear Neighbors and Believers in Democracy: Attached below is East Lansing Citizens for a Public Servant City Attorneys Motion for Reconsideration, along with most exhibits, filed Wednesday September 10, 2014, in the Ingham County Circuit Court. Also attached is a transcript of the last court hearing. The purpose of the reconsideration motion is to review the disqualification of 110 registered voter signatures that if not denied for a technicality, would place this measure on the ballot. We have also not waived the argument of including at least one valid signature for each person who signed twice, amounting to 86 or 87 votes, which would also provide enough signatures to place this measure on the ballot. An unrelated pending case at the Michigan Supreme Court may decide that question for us, In Re Benton Harbor. Ar least thirteen (13) other Michigan cities disagree with East Lansing and have gone on record stating they do not require notarization of petitions. Lansing and Brighton also confirmed this by phone, leaving East Lansing as the outlier. As of now, you are being denied the right to vote on this petition because of a technicality virtually no other city in Michigan would claim. We have again asked the city clerk to sit down with us and discuss, but have not received any response. That has been typical of the entire process. We believe your First Amendment rights are worth fighting for, and will continue to advocate for them for as long as necessary. City Hall is apparently willing to spend your money to deny democracy-- and Nathan Triplett as mayor has been no friend to democracy, voter rights, or ballot access. On short notice, the cities willing to state in writing they do not require notarization of petitions (this is an interpretation of state law) include: Grand Rapids; Jackson; Muskegon; Munising; Alpena; Bay City; Saugatuck; Coldwater; Traverse City; Marquette; Mount Pleasant; Howell and Grand Ledge. From coast to coast across the State of Michigan, clerks are friendly to democracy and transparency. But not in East Lansing! East Lansing takes a view that is outside the norm. The entire council has been shamefully silent and unsupportive of your right to vote. The council could still enact this or a similar measure. We can only wish the City was so steadfast and insistent in permitting un-approved fifth floors of buildings, fixing sidewalks, or engaging in pre-development agreements as it is in denying democracy and the right to vote. I know many are wondering if there are any small d democrats on city council…... Yours in Justice, _____________________________________________ STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM _______________________________________ EAST LANSING CITIZENS FOR A PUBLIC SERVANT CITY ATTORNEY, Hon. Clinton Canady III Plaintiff, vs. Case No. 14-1001-AW MARIE WICKS, in her official capacity as East Lansing City Clerk, Defendant. _______________________________________ Jeffrey A. Hank (P71152) Michael J. Hodge (P25146) Attorney for Plaintiff Attorney for Defendant PO Box 1358 One Michigan Avenue, Suite 900 East Lansing, MI 48826 Lansing, MI 48933 TEL: (855) 426-5529 TEL: (517) 483-4921 _______________________________________ EMERGENCY MOTION & BRIEF FOR RECONSIDERATION Plaintiff, by and through its attorney Jeffrey A. Hank, under MCR 2.119(F) moves for reconsideration of the issue denying validity of one hundred and ten registered voter petition signatures due to the non-notarization of petitions as follows[1]: Standard of Review MCR 2.119(F) allows for the Court to reconsider it’s prior ruling when it is shown that a palpable error occurred, or that the Court has been misled, and a different disposition on the motion should occur as a result. A trial court has discretion to grant motion for reconsideration and may give party another chance on motion it previously denied to correct mistakes, preserve judicial economy, or minimize parties’ costs. A trial court can allow plaintiff to offer new evidence because court believed issue warrants further consideration, in effect, a “second chance”.Kokx v Bylenga, 241 Mich App 655, 617 NW2d 368 (2000). The palpable error requirement of MCR 2.119(F)(3) merely provides guidance to trial court in deciding reconsideration motions and does not operate to restrict trial court’s discretion to determine whether grant of reconsideration is appropriate in particular case. Fetz Eng’g Co v Ecco Sys, Inc, 188 Mich App 362, 471 NW2d 85 (1991), vacated on other grounds, 439 Mich 977, 483 NW2d 619 (1992). The court rule purpose is to allow trial court to immediately correct any obvious mistakes it may have made in ruling on motion, which would otherwise be subject to correction on appeal, but at much greater expense to parties. Bers v Bers, 161 Mich App 457, 411 NW2d 732 (1987). Issues Plaintiff presents seven legal arguments, and the Court would have to deny all seven in order to rule that the non-notarized petition signatures are invalid and the petition is not eligible for a November 4, 2014 vote: 1) Michigan precedent deems non-notarization as not fatal to the validity of a petition; 2) Plaintiff was in substantial compliance with statutory election provisions, and therefore the signatures are valid under Michigan law; 3) Plaintiff filed corrected certificates of circulator with notarization to the Clerk as allowed by Michigan law; 4) Notarization is not required under Michigan law; 5) Even if notarization is required under Michigan law, the notarization requirement is unconstitutional as it does not advance a compelling government interest and is not narrowly tailored, thereby violating petitioners First Amendment rights. 6) MCL 117.25(1) and (2) are unconstitutionally vague. 7) Affidavit language and verification do not have uniform definitions; 8) An additional factual point is that the spreadsheet provided to Plaintiff by the clerk with voter info rejecting petition, does not match what the clerk provided to the Court, and the clerk never informed the court or Plaintiff of the variance. Between the clerk’s new spreadsheet and the proofs submitted in Plaintiff’s motion response, the Court should validate another 34 voters. (See Pltf’s Complaint Ex D and Def’s Motion Ex 2). Legal Analysis Rather than appeal and cost the parties greater expense and delay which could cause the denial of opportunity to vote on a measure initiated by approximately 1,600 registered East Lansing voters, this Court has the ability to remedy an error under MCR 2.119(F). The parties filed briefs one and three days before the motion to show cause, not giving the Court sufficient opportunity to fully review the merits of the notarization issue. The Court based it’s prior ruling on a 1938 case that discussed affidavits and oaths, while not considering modern First Amendment law; substantial compliance with election law; relevant Court of Appeals precedent; nor the custom of clerk’s offices in Michigan. Defendant failed to cite to a single case requiring notarization of petitions, and further failed to cite to a single instance of a clerk’s office requiring it. Defendant further ignored caselaw contrary to it’s argument that is controlling. The US and Michigan Constitutions elevate the right to petition to a fundamental right, and for that fundamental right to be infringed, the government must have a compelling interest and narrowly tailored regulations. US Const, Am I. Michigan’s Constitution of 1963, Article II -- § 9 -- Initiative and referendum; limitations; appropriations; petitions. Sec. 9. The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. Settles v Detroit City Clerk, 169 Mich. App. 797 (1988), 427 N.W.2d 188 In Settles, Plaintiff filed a mandamus suit attempting to stop an initiatory measure from being placed on the ballot. Plaintiff alleged (and the court agreed) that petitioners failed to comply strictly with statutory law, and that those deviations were fatal to the petitions (the court disagreed). The court discussed both the Home Rule City Act, and also Detroit’s ancillary charter provisions for citizen’s initiatives. In particular, the petitions failed to have a sworn affidavit of the circulator as required by sec. 12-102. Prior courts have ruled that the absence of a signed jurat has, as noted by the trial court, been held to be a curable defect, Dickinson v Simondson, 25 Mich 113 (1872). Accord,Chisnell v Chisnell, 99 Mich App 311, 321-324; 297 NW2d 909 (1980). “Had this defect been raised to the city clerk, we believe the city clerk, had he found the affidavit defective, would have had the duty to find no valid signatures and allow for the filing of additional petitions within fifteen days under § 12-105 of the charter.” The court ruled that the failure to properly notarize petitions did not disqualify them, and that the initiative provisions should be liberally construed, and facilitate, and not hamper, the exercise of a First Amendment right. The absence of a jurat here does not have a material impact on the safeguard provided by the affidavit as contained on the petitions. Consistent with our obligation to liberally construe initiative provisions to facilitate rather than hamper the exercise of the right, we find that this claim does not establish a clear legal duty on the part of the city clerk not to certify the petitions…. Settles at 806. (emphasis added). Further, In Wells v Jones, 125 Mich App 137, 139; 336 NW2d 17 (1983), the plaintiff in a paternity action, though she signed the complaint and it contained a notarial seal in the proper form, testified that she did not raise her hand when she swore to the truth of the statements. Her failure to raise her hand was held to be a minor procedural defect which, in the absence of any conceivable prejudice, did not require reversal. In this case, the non-notarization of 23 out of 223 petitions is a minor procedural defect, and there is no prejudice to Defendant by validating the signatures within. Defendant has already certified that 110 signatures are of registered voters, and there is no secondary reason for invalidation. Further, Plaintiff cured the defect of non-notarizing those 23 petitions with the clerk, submitting an affidavit of the circulator that is notarized. Ex 1. Plaintiff is in Substantial Compliance with Election Law The Michigan Court of Appeals has held that “deficiencies amounting to a wholesale exclusion of mandated disclosure information justify removal of an issue from a ballot, while mere technical noncompliance would not prevent the election from going forward.” Herp v Lansing City Clerk, 164 Mich App 150; 416 NW2d 367 (1987), lv den 429 Mich 899 (1988)(emphasis added). In Meridian Twp v East Lansing, 101 Mich App 805; 300 NW2d 703 (1980), lv den 411 Mich 962 (1981), the Court of Appeals set forth the general principle that all doubts as to technical deficiencies or failure to comply with the exact letter of procedural requirements in petitions (generally, although that case involved annexation petitions) are resolved in favor of permitting the people to vote and express a choice on any proposal subject to election. (emphasis added). In Newsome v Bd of State Canvassers, 69 Mich App 725, 729; 245 NW2d 374 (1976), lv den 397 Mich 833 (1976), the Court of Appeals held that [c]onstitutional and statutory initative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of those reserved rights, Kuhn v Dept of Treasury, 384 Mich 378; 183 NW2d 796 (1971). (emphasis added). The Court In Meridian stated: Matters of concern to one inquiring as to the validity of petitions would be whether the requisite number of signatures required by the statute, in this case 20 percent of the electors of the city, are present, meaning that the signatures must be checked, as with any election petition, against those on file with the county clerk regarding eligible voters. The petitions must have been circulated only in the affected area, must bear the names and signatures of the circulators, and must be in sufficiently clear terms so that those signing the petition can be assumed to have understood to what it was they were appending their signatures. As a 200-year history of democracy in this country and nearly 150 years in this state have given county clerks substantial experience in such matters, ample standards exist by which clerical discretion in determining the validity of such petitions can be guided, measured, and restricted. As a general principle, all doubts as to technical deficiencies or failure to comply with the exact letter of procedural requirements are resolved in favor of permitting the people to vote and express their will on any proposal subject to election.Boucher v Engstrom, 528 P2d 456, 562 (Alas, 1974), Cope v Toronto, 8 Utah 2d 255; 332 P2d 977 (1958); see also, Thompson v Secretary of State, 192 Mich 512, 521-522; 159 NW 65 (1916),Alexander v Mitchell, 119 Cal App 2d 816; 260 P2d 261 (1953), Brownlow v Wunsch, 103 Colo 120; 83 P2d 775 (1938). In this case, a notarization technicality is preventing an election from going forward. All doubts as to technical deficiencies or failure to comply exactly with statutory law should be resolved in favor of Plaintiff. MCR 117.25(1) and (2), not being clear as to whether notarization is required, should be liberally construed to facilitate, rather than hamper, the right of the people of East Lansing to vote on this initiative. As discussed below, there is no caselaw or policy or other example of notarization Defendant presented to the Court that refutes these most important and well-settled principles of initiative law. Every other aspect of this petition, from font and paper size, to signature blocks, circulator certification, state law warnings, jurisdiction, committee identification, everything—is in perfect compliance. If not, Defendant would have complained of it. Notarization is Not Required Under Michigan Law The Court is aware Defendant used categorical invalidations that were not lawful. The Defendant’s invalidation of non-notarized petitions is novel, and is not the standard practice in Michigan. Attached as Exhibits 2-13, are true and correct written statements from twelve (12) city clerk’s offices stating they do not require notarization for local initiatory petitions under the Home Rule City act. The cities of Lansing and Brighton also do not require notarization. The following cities state clearly that they do not require notarization: - Grand Rapids; Jackson; Muskegon; Munising; Alpena; Bay City; Saugatuck; Coldwater; Traverse City; Marquette; Mount Pleasant; Grand Ledge. In this instance, Defendant’s tactic is completely outside the norm and custom of Michigan election law practice. From north to south and from coast to coast, city clerk’s and election specialists almost unanimously agree—notarization is not required. Michigan law is replete with “affidavits” that do not require a notary, and so are other states. Affidavits not requiring a notary under Michigan law include the Property Transfer Affidavit (titled affidavit with a “certification”); Principal Residence Exemption Affidavit (again “certification); Michigan State University’s “Affidavit of Support for Undergraduate International Students”; the State of Minnesota’s “Affidavit” for Residency Tax for Michigan workers; and the Chicago Police Department’s Affidavit of Employment for Peace Officers (See Plaintiff’s motion response for exhibits of affidavits). Defendant based it’s argument that MCL 117.25 requires notarization on a 1938 case unrelated to modern election law, and MCL 117.25 (1) and (2) don’t even state that the circulator must swear an oath, nor sign affidavit in the presence of a notary or third party. There is no clear language indicating the circulator must take an oath, merely that one must verify by affidavit, which has been commonly interpreted as the circulator’s certificate—and the various clerk’s statements herein are proof of that. Notably absent in the statutory language is any reference to the affidavit in the context of a notary, or third-party validation. This is opposite of other statutory provisions in Michigan like MCL 552.9a Decree of Divorce, or the recently enacted changes to Durable Powers of Attorney specifically requiring a notary MCL 700.5501, where the Legislature clearly states that the affidavit or document shall be signed before a notary public or a clerk of the court. The Legislature certainly knew the difference between drafting statutes with affidavits requiring a notary, and the initiatory petition statutory language, which does not. Finally, a voter may sign an affidavit when voting that the voter does not possess photo identification. This affidavit, used to vote, also does not require a notary. MCL 168.497c. Clearly, the Legislature knows the difference between affidavits and verifications requiring a notary and those that don’t, like initiatory petitions. Plaintiff used a notary block only for it’s own purposes in case unknown persons were going to circulate the petition. Plaintiff always thought this was optional and it used as an internal control rather than a legal requirement. It is mere surplusage. MCL 117.25(1) and (2) are Unconstitutionally Vague and Inequitable In this case, MCR 117.25(1) and (2) are vague, and without standards that give persons of ordinary intelligence fair notice of any notary requirement. The fact that eleven different clerks and election law specialists and a circulator do not believe and did not have notice of any notary requirement evidences vagueness, and in this instance, is allowing Defendant to arbitrarily enforce a technicality that is depriving persons of fundamental constitutional political speech and petitioning rights. A law involving a fundamental right is unconstitutionally vague under due process standards if it does not give a person or ordinary intelligence fair notice of what is prohibited and is so vague and standardless that it allows for arbitrary and discriminatory enforcement or that it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,. Village of Hoffman Estates, 455 US 489 (1982);United States v. Harriss, 347 U.S. 612, 617 , and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242 . Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids. Lanzetta v. New Jersey, 306 U.S. 451, 453 . Lanzetta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U.S. 385, 391 ; Cline v. Frink Dairy Co., 274 U.S. 445 ;United States v. Cohen Grocery Co., 255 U.S. 81 . In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 ; United States v. National Dairy Products Corp., 372 U.S. 29 ; United States v. Petrillo, 332 US 1. In this case, initiatory petitions are a narrow category of election law, and Plaintiff did not have fair notice of any notary requirement, therefore the Court may grant great leeway in interpreting MCL 117.25. The Court should also validate these signatures on the basis of equity. With divergent opinion amongst clerk’s, this situation capable of repetition yet evading review. Even if Notarization is required under MCR 117.25, it is Unconstitutional No other petitions in Michigan require notarizations (recall, nominating, state initiative). First amendment law relating to petitioning has been evolving over the past two decades, almost totally in favor of more liberal petitioning requirements. Various Michigan and federal courts have held legal principles that when applied to this case, would suggest that a notarization requirement is unlawful. First, a discussion of the legal standards: Petition signers as well as petition circulators have First Amendment rights at issue when laws restrict the petitioning process. The US Supreme Court agrees: The initiative process is not guaranteed by the U.S. Constitution (Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir.1993)), but once a state confers upon its citizens the opportunity to participate in the initiative process, it may not limit that state-created right in contravention of federal fundamental law. Meyer v. Grant, 486 U.S. 414, 422-424, 108 S.Ct. 1886, 1892-93, 100 L.Ed.2d 425 (1988) (the right to circulate an initiative petition is core political speech). Brock v Thompson, 948 P2d 279, 287 fn 25; 1997 OK 127 (Okla 1997). Under Nader v Blackwell, Defendant’s assertion that Michigan law requires a notary must fail because this would require something analogous to registration or residency requirements—namely, that a Michigan notary sign a petition. See also Moore v Johnson, case no. 14- 11903, ED Mich May 2014 (John Conyers case). The federal courts have viewed denial of ballot access with “general agreement” that these statutes “merit the closest examination” and cannot survive strict scrutiny review. Moore Id. citing Libertarian Party of Virginia v Judd, 718 F.3d 308, (4th Cir 2013) at 316-17. Since TUAC v Austin, the Sixth Circuit has recognized that Naders petition circulation activity constitutes core political speech, and any regulation of that speech is subject to exacting scrutiny. See Buckley [v American Constitutional Law Foundation, Inc], 525 U.S. at 192 n. 12, 119 S.Ct. 636; id. at 210-11, 119 S.Ct. 636 (Thomas, J., concurring) (applying strict scrutiny because registration requirement impacted core political speech).” Nader v Blackwell, 545 F3d 459, 475 (CA 6, 2008). This rule applies to the context of recalls in Michigan as well: “The circulation of recall petitions is core political speech.” Bogaert v Land I, 572 F Supp 2d 883, 900 (USDC WD Mich 2008). In its second opinion, which came after Nader v Blackwell had been published, the Bogaert v Landcourt went into more detail: This Court held in its opinion on the motion for preliminary injunction that Plaintiff had a substantial likelihood of prevailing on the merits because recall-petition speech is core political speech, it is subject to strict scrutiny, and the district residency and registration requirements are not narrowly tailored to achieve Michigans compelling interest in the integrity of recall petitions and the combat of election fraud. (Dkt. No. 37, Op. 30-39.) Bogaert v Land II, 675 F Supp 2d 742, 749 (WD Mich 2009). Then-Secretary of State Land claimed that the recall-petition process was different from initiative- or candidate-based petitioning, and tried to appeal for a flexible standard: In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Supreme Court held that in determining whether an election law violates the First Amendment a court should weigh the burden of the restriction against the States interests: Regulations imposing severe burdens on plaintiffs rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a States important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. Id. at 358, 117 S.Ct. 1364 (internal quotations and citations omitted); see also Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir.2008) (“Although a state need not present ‘elaborate, empirical verification’ of the weight of its purported justification when the burden is moderate, it must come forward with compelling evidence when the burden is higher”) (citations omitted). Bogaert v Land II, 675 F Supp 2d at 749-750 is another oft quoted case. In this case, however, the burden placed on rights is the most severe possible – denying it completely. Accordingly, even under flexible analysis, the scrutiny here should be strict: the proposed regulation must be narrowly tailored to serve a compelling state interest. Furthermore, the Bogaert v Land II court found justification for not even bothering with the flexible approach, and rejected the distinction in petition types. Defendant’s attempt to distinguish recall-petition circulation from other forms of petition circulation is not persuasive. Contrary to Defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recall-petition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute Defendant’s argument for distinguishing recall petitions from initiative or candidate petitions. . . . [R]ecall-petition circulators resemble both initiative-petition circulators and candidate-petition circulators because they similarly seek ballot access. Bogaert v Land II, 675 F Supp 2d at 750-751. This Courts previous determination that § 957 posed a severe burden on recall-petition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232 F.3d 135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir.2000). Subsequent to this Courts opinion on the preliminary injunction motion, the Sixth Circuit issued its opinion in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in which it joined the other federal circuits in extending the principles established in Buckley regarding initiative-petition circulators to candidate-petition circulators. Id. at 475-76 (applying strict scrutiny and holding that Ohio’s registration and residency requirements for candidate-petition circulators violated the First Amendment). See also Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to analyze Oklahoma’s ban on non-resident initiative-petition circulators). None of Defendant’s arguments convince this Court that its previous determination that the registration and residency requirements of § 957 impose a substantial burden on Plaintiff’s First Amendment rights and are not narrowly tailored to Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud was erroneous. The Court stands by its previous analysis. Rather than reiterating that analysis herein, the Court reaffirms and adopts that analysis by reference and declares that the requirements in Mich. Comp. Laws § 168.957 that recall-petition circulators be registered to vote and be residents of the legislative district of the official to be recalled are unconstitutional as a violation of the First Amendment of United States Constitution, applicable to the State of Michigan through the Fourteenth Amendment. (Dkt. No. 37, Op. 33-39.) Bogaert v Land II, 675 F Supp 2d at 752. See also Moore et al v Johnson, No 14-11903, slip opinion p 9 (USDC ED MI, S Div; May 23, 2014) (“The Sixth Circuit in Nader held that it was ‘undisputable’ that the plaintiff suffered a serious limitation on his First Amendment rights – a limitation triggering application of strict scrutiny”). The notary requirement, if it exists, is presumably to prevent fraud, and could be viewed in a similar context to duplicate signatures. Whether it’s duplicate signatures, residency or registered voter requirements, paid circulators, or notary requirements, the same constitutional analysis applies. Of the eight cases in other state courts that cite TUAC v Austin, one from Pennsylvania distinguished handling instances of fraud and mistake by multiple signers in the duplicate signature context: 1. At the hearings, counsel for the Candidates conceded that all the signatures challenged by Petitioners as duplicate signatures, except approximately 80 signatures, should be stricken as invalid. 2. Counsel for the Candidates further stipulated that the individuals who signed the Nomination Papers five times or more committed fraudulent acts and that all signatures of those individuals should be stricken. 3. Based on the parties’ concession and stipulation and the credible evidence presented at the hearing, this Court finds that the following signatures should be stricken as invalid duplicate signatures. In the event that the same signatures invalidated in this order have been or will be stricken on any other ground, they will be counted only once in calculating the total signatures stricken by this Court[.] In re Nader, 865 A2d 8, 73-74 (Pa Cmwlth 2004). Absent such admission, or proof, there is no basis for striking all signatures of any signer of the subject petition. The most recent case citing TUAC v Austin does so to recognize that petition signers as well as petition circulators have First Amendment rights. Filo Foods, LLC v City of SeaTac, 319 P3d 817; 179 Wn App 406 fn 1 (Wash App Div 1, 2014). The issue in Filo Foods was the constitutionality of a Washington state statute: RCW 35A.01.040 imposes requirements for all petitions, including initiative petitions, to be signed and filed with a code city. This includes the requirement at issue in this case: “Signatures, including the original, of any person who has signed a petition two or more times shall be stricken.” We must decide if this provision unduly burdens the First Amendment rights of SeaTac voters who signed Proposition One. Filo Foods, 179 Wn App at 407 (footnote omitted). The Washington Court of Appeals panel cited three US Supreme Court cases as the basis for its reviewing the statute under the “exacting scrutiny” standard: Meyer v Grant; Buckley v ACLF; and Doe v Reed, 561 U.S. 186, 191, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). The Reed Court stated that the “exacting scrutiny” standard required “ ‘a substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” To survive this scrutiny, “ ‘the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.’ ” The Court noted that a state’s interest in preserving electoral integrity extended “to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures.” Thus, we must measure the strength of this interest against the burden RCW 35A.01.040 places on First Amendment rights. Filo Foods, 179 Wn App at 408. The court went on to note a precedent in Washington state caselaw, Sudduth v Chapman, 88 Wn 2d 247; 558 P2d 806 (1977). In Sudduth v. Chapman, the Washington Supreme Court measured the strength of this interest against the burden placed on our states constitutional rights of initiative and referendum by a statute denying voters who signed a petition more than once the right to have one signature counted and found it wanting. In Suddeth [sic], the court considered the constitutionality of RCW 29.79.200, which provided, “If the secretary of state finds the same name signed to more than one petition[, ] he shall reject the name as often as it appears.” Article II, section 1 of the Washington Constitution reserves the power of the initiative to the people. The State contended that RCW 29.79.200 especially facilitated the initiative process and therefore did not exceed the legislatures authority. The court rejected this argument. The court stated, Were there some showing of facts upon which the legislature could reasonably have found that this provision was necessary to facilitate the initiative process and guard its integrity, we would, of course, be obliged to defer to the legislative judgment; but since no state of facts which would justify it has been proposed, in order to protect the right of the people which was reserved by them in their constitution, we must hold this portion of RCW 29.79.200 to be in excess of the legislative authority granted. The court noted that the State made no claim the challenged provision was necessary to guard against fraud and mistake. It then observed that while 20 states have constitutions providing for initiative and referendum, its research had not disclosed any comparable statute. The court quoted the following observation: “In view of the multiplicity of petitions which are circulated before each election, it is not surprising that some honest citizens may become so confused by the number of petitions presented to them that they may inadvertently sign two or more for the same measure. This, of course, is carelessness on their part, but if they are legally entitled to sign, we think one signature should be allowed and the others stricken.” Filo Foods, 179 Wn App at 408-409 (footnotes omitted; emphasis added). The Filo Foods court concluded, “While the State’s interest in preserving electoral integrity extends to ferreting out duplicate signatures caused by mistake, striking all – instead of counting the first and striking the duplicates – overburdens voters’ First Amendment rights.” And it provided this neat summary of its reasoning: The First Amendment protects statutorily created initiative rights. Any burden on the exercise of these rights is subject to exacting scrutiny. To guard against fraud and mistake, the State does not need to deny a voter who signs petitions more than once the right to have one signature counted. Therefore, we hold the provision of RCW 35A.01.040(7) requiring the striking of all of a voter’s signatures unconstitutional. Filo Foods, 179 Wn App at 410. Plaintiff urges this court to adopt this analysis– without the support of any Michigan state statute or promulgated rule – is as unconstitutional as the statute held so in Filo Foods; and adopt the same rule for the subject petition as the Filo Foods court instituted. Defendant has no basis in denying petitioners their First Amendment rights because of a non-notary technical minor procedural issue. In this case, it is clear the First Amendment rights of East Lansing voters are being violated. Even If the City’s interest in preserving the purity of elections is compelling,striking all signatures of registered voters is not narrowly tailored. There is no interest Defendant has in requiring a notary. Absent any statute or formal regulatory action, the city of East Lansing cannot be held to have justified its practice as narrowly tailored, clear and unambiguous, or un-arbitrary. Furthermore, Defendant itself has and uses other more narrowly-tailored tools. The state-mandated form of petitions properly says that “knowingly” signing more than once is a violation of state law. However, without proof of a knowing violation (cf In re Nader, 865 A2d 8, 73-74 (Pa Cmwlth 2004)), neither the state nor petitioner has any basis for justifying a total denial of properly qualified citizens’ rights to sign petitions and be “heard” – counted. There is no fraud, so what is basis for having a notary? Again, there can be no more severe burden on any right than to deny it totally. Applying the proper rule, as sought by Plaintiff – namely, to deem valid the 110 signatures – would avoid the severest possible burden on a core political speech right. Discussion of Buckley v ACLF In Buckley, the Supreme Court struck down a Colorado statute which required, inter alia, that initiative-petition circulators be registered voters. Id. The Court extended its holding in Meyer v. Grant, 486 U.S. at 414, in which it rejected Colorados ban on paying ballot-initiative petition circulators. Justice Ginsburg, writing for theBuckley majority, discussed the fundamental constitutional rights at stake in election petition circulation: Petition circulation, we held, is core political speech, because it involves interactive communication concerning political change. First Amendment protection for such interaction, we agreed, is at its zenith. We have also recognized, however, that there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. Buckley, 525 U.S. at 183 (internal citations omitted.). In this case, as in Meyer, the requirement imposes a burden on political expression that the State has failed to justify. Id. at 428. Buckley, 525 U.S. at 194-195 (some internal citations omitted). Keeping Buckley in mind, we examine the character and magnitude of the burden imposed by requiring notarization on First Amendment rights and the extent to which the law serves Michigan’s interests. Burdick v. Takushi, 504 U.S. 428, 433-434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Laws which are severely burdensome to constitutional freedoms must be narrowly tailored to serve compelling state interests, while less burdensome statutes receive less exacting scrutiny. California Democratic Party v. Jones, 120 S.Ct. at 2412. The imposition of a notary requirement burdens the petitioners’ and others core freedoms of political expression and association. See Buckley, 525 U.S. at 183; Krislov, 226 F.3d at 858, 860-861. That is, petitioners may not associate for purposes of political expression by organizing nominating petition signature drives with whomever they wish. See Meyer, 486 U.S. at 424 (The First Amendment protects appellees right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.). Forcing a disputed notary requirement on petitioners is an unconstitutional burden, and several other courts have reasoned similarly. The notarization requirement unfairly burdens circulators because it essentially requires a two-person team to circulate any petition. At least two other courts have found a severe burden in a two-person circulation-team requirement and declared the state statutes unconstitutional, as they either did not serve a compelling state interest and/or were not narrowly tailored so as to avoid running afoul of the 1st Amendment. Pennsylvania, inMorrill v. Weaver, 224 F.Supp.2d 882, 886, 900 (E.D.Pa.2002); and Nevada, In Nevada, registered voters may circulate initiative petitions and provide the necessary Section 3(1) affidavits. Unregistered persons may also circulate petitions, but to obtain the Section 3(1) affidavits, they must (1) convince a registered voter who signed a particular petition booklet to execute an affidavit, attesting that the booklets signatures are genuine and that the signatories were, at the time of signing, registered voters in their county of residence; and (2) arrange for execution to take place before a notary. These extra steps, required in the Section 3(1) process for unregistered circulators, impose a burden on political speech that is no less severe than the direct registration requirement invalidated in Buckley. Specifically, if the Section 3(1) affidavit is to have any value at all as a means of ensuring the integrity and reliability of the circulation process, it must be executed by someone who participated in gathering the signatures. Thus, unregistered circulators must be accompanied at all times by a registered voter who is willing to sign the petition booklet and execute a Section 3(1) affidavit under oath for that booklet, attesting that the signatures are genuine and that the signatories were, at the time of signing, registered voters in the county of their residence. The Court ruled that “…Section 3(1)s requirement that an initiative-petition document be accompanied by a signatorys affidavit severely burdens speech….” Id. (emphasis added). Heller v. Give Nev. A Raise, Inc., 96 P.3d 732 (2004). Ex 14. Michigan law is analogous and any purported notary requirement must also be strictly construed. “[T]he right to recall public officials is an extremely important one which must be carefully guarded by the courts [. . .] statutes governing recall should be construed in favor of the rights exercise and [. . .] limitations on the right should be strictlyconstrued[.]” Schmidt v Genesee Co Clerk, 127 Mich App 694, 701-702; 339 NW2d 526 (1983). Further, “it is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge Inc v Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1979) citing Gannett Co Inc v DePasquale, 443 US 368, 383 (1979). “Statutes must be struck down if they reduce the number of qualifying initiatives and the exchange of ideas.” Meyer, 486 US at 421. And so, MCL 117.25(1) and (2), to the extent they actually require notarization, must be struck down. Conclusion There is still time to place this measure on the November ballot, as absentee ballots are not delivered by the county clerk to overseas military personnel under federal law until 45 days before the election (September 21), although even this deadline is subject to extension. MCL 168.759(a). Plaintiff urges the Court to reconsider the validity of 34 voters Plaintiff submitted evidence of being registered, and the 110 non-notarized petition signatures in light of liberally construing election law so as to facilitate and not hamper the right to vote; because failure to notarize is not a fatal defect; because notary defects can be cured; because Plaintiff was in substantial compliance with petition law, if not total compliance; because notarization is not required under MCR 117.25, and if it is, it’s unconstitutional because the statutory language is vague, and impermissibly burdens both petitioners and circulators 1st Amendment rights; and lastly, with all things considered, because it is equitable to proceed with a public vote in light of the arbitrary and un-customary invalidation of the petition by the Defendant. Prayer for Relief WHEREFORE, plaintiff prays that the court reverses it’s prior decision, and enters an order that the one-hundred and ten (110) registered voter petition signatures due to the non-notarization of petition are valid, an additional (34) signatures presented by Plaintiff and Defendant are valid, and further orders the East Lansing City Clerk to take all necessary actions to place the initiative on the November ballot. A proposed order is enclosed. Respectfully submitted, __________________________ Dated: September 10, 2014 Jeffrey A. Hank (P71152) Hank Law PLLC P. O. Box 1358 East Lansing, MI 48826 TEL: (855) 426-5529 [1] Plaintiff reserves the right, and does now waive any argument, related to duplicate signatures pending the Michigan Supreme Court’s decision in In Re Benton Harbor -- Jeffrey A. Hank, Attorney Telephone: (855) 426-5529
Posted on: Fri, 12 Sep 2014 12:55:34 +0000
Trending Topics
Recently Viewed Topics
© 2015