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Federal Judge Orders Cong. John Conyers Placed Back On Ballot

Reps Hold News Conference At Capitol On Free Flow Of Information Act Of 2013

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:

Moore et al v. Johnson et al by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Just Me says:

    It helps to be a democrat when these things happen.

    Like or Dislike: Thumb up 7 Thumb down 9

  2. Jenos Idanian #13 says:

    Rules are for little people and Republicans. Being a Democrat means “good intentions” are all that matters.

    I’m surprised the ruling didn’t cite the Jon Corzine precedent.

    Like or Dislike: Thumb up 3 Thumb down 7

  3. Pinky says:

    Thaddeus is a stupid name.

    Like or Dislike: Thumb up 3 Thumb down 2

  4. bill says:

    well, rahm “proved” he lived in chi-town even though we all knew he lived in dc- but who cares if the voters really want these kinds ruling over them?

    Like or Dislike: Thumb up 1 Thumb down 2

  5. Just 'nutha' says:

    @Pinky: Thaddeus?? Are you sure you’re ranting at the correct abuse of democracy by the eeeevillll libs?

    Like or Dislike: Thumb up 0 Thumb down 0

  6. Tillman says:

    Huh, I seem to have stepped into Bizarro World, where all the commenters are complaining IOKIYAD instead of IOKIYAR.

    @Just ‘nutha’: Are you sure he isn’t?! Now Ignacious, there’s a name I haven’t heard in a while. Or Ichabod. Not enough names that start with I and aren’t Isabella nowadays.

    Like or Dislike: Thumb up 3 Thumb down 1

  7. Jenos Idanian #13 says:

    @Tillman: Let’s not forget Ishmael and Irving.

    And this is par for the course. When something makes the left look bad, change the subject as quickly as possible, then say it’s old news.

    Like or Dislike: Thumb up 1 Thumb down 1

  8. al-Ameda says:

    He reminds me of that guest at the party, it’s 1:30 in the morning, he’s the last one left, and he just doesn’t get it … the party is over … please leave.

    Like or Dislike: Thumb up 2 Thumb down 1

  9. Jenos Idanian #13 says:

    The First Rule of the New OTB is “we don’t talk about things that embarrass Democrats.”

    Like or Dislike: Thumb up 1 Thumb down 4

  10. al-Ameda says:

    @Jenos Idanian #13:

    The First Rule of the New OTB is “we don’t talk about things that embarrass Democrats.”

    So why then did OTB post this article about John Conyers?
    Looks like they broke the First Rule … again.

    The First Corollary to the First of the “new OTB” is that “conservatives will always complain that they are victimized by so-called liberals, ” which, as you just showed us, is definitely in play here.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. Jenos Idanian #13 says:

    @al-Ameda: It’s you and the rest of the commentariat that set the tone. In the prior article, all you guys wanted to talk about was McCotter. Now, where are the comments? The analysis? The discussion of the issues raised?

    I know what’s the problem here. You can’t find a Republican to blame. So it’s a non-issue to you.

    Like or Dislike: Thumb up 1 Thumb down 1

  12. Tillman says:

    @Jenos Idanian #13: Irving! Haven’t seen any of those lately. Or Ingrid, or even Irene.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. al-Ameda says:

    @Jenos Idanian #13:

    I know what’s the problem here. You can’t find a Republican to blame. So it’s a non-issue to you.

    The problem here among the conservative commentariat is that conservatives are constantly portraying themselves as victims of some kind of liberal commentariat bias.

    Basically, I said, it’s long been past time for Conyers to step down. Now, if I’d been sensitive to your complaint, I would have said, “John Conyers should step down, and I hope that other Democrats will say the same so as to reduce the possibility that conservatives here on OTB will complain that liberals are not conservatives.”

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Jenos Idanian #13 says:

    @al-Ameda: Basically, I said, it’s long been past time for Conyers to step down. Now, if I’d been sensitive to your complaint, I would have said, “John Conyers should step down, and I hope that other Democrats will say the same so as to reduce the possibility that conservatives here on OTB will complain that liberals are not conservatives.”

    You’ve lost me here. Just what are you trying to say?

    I’m seeing a couple of ways of interpreting your statement.

    1) Conyers has outlived his usefulness and is now harmful to the party, so he should have gone long before this latest embarrassment.

    2) You would denounce the violation of the letter and the spirit of the election laws, but that would give “aid and comfort” to those of us you reflexively disagree with.

    On the first account, you’re pretending that this Epic Fail from a man who literally is way, way old enough to know better simply didn’t happen, and don’t care about the rewriting of the law to benefit your side.

    On the second account, you’re letting us control how you express (and, for all I know, feel) your inner sense of morality. You’d like to say you oppose Conyers’ attempt to cirvumvent the law and the judge’s abrogation of his sworn duty, but since it would let us win one and you’d have to admit we were right, you can’t do that. So you fall back and make vague denunciations of Conyers generally and avoid the particulars.

    Between this case and the Corzine case, we see that the Democrats see that the highest law is “Democrats win,” and the actual letter of the law is only for Republicans to follow.

    If you can suggest another interpretation of the Conyers and Corzine examples, I’d be fascinated to hear them.

    Alternately, you could admit that both were shameful events. But I ain’t holding my breath for that one.

    Like or Dislike: Thumb up 0 Thumb down 1

  15. al-Ameda says:

    @Jenos Idanian #13:

    You’d like to say you oppose Conyers’ attempt to cirvumvent the law and the judge’s abrogation of his sworn duty, but since it would let us win one and you’d have to admit we were right, you can’t do that. So you fall back and make vague denunciations of Conyers generally and avoid the particulars.

    What is vague about saying that it is time for Conyers to go?

    Perhaps it would have been more direct to say something like, “you know, Republicans would probably like it if I’d say not only that Conyers should go, but that he should be executed too. Same with Corzine.” That would have been less vague, however I oppose the death penalty so conscience matters to me.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. Jenos Idanian #13 says:

    @al-Ameda: What is vague about saying that it is time for Conyers to go?

    Well, how about saying why you think Conyers should go? How about some kind of expression of opinion about the court’s ruling? Or maybe you just want a black man out of Congress?

    So, why is it “time for Conyers to go?” Too old? Too black? Too liberal? Too corrupt?

    Like or Dislike: Thumb up 0 Thumb down 1

  17. al-Ameda says:

    @Jenos Idanian #13:

    So, why is it “time for Conyers to go?” Too old? Too black? Too liberal? Too corrupt?

    Let’s examine the options:
    Too old? — Subjective right? Certainly not compared with Strom Thurmond
    Too black? — I’ll leave that to Republicans, they’re obsessed with race.
    Too liberal? — Not compared with any Republican
    Too corrupt? — Well, not compared with John Boehner, who in the 1990s was seen passing out Tobacco Lobby checks to his GOP colleagues on the floor of The House.

    Although Conyers has served his country well, I’d say that 26 terms in the House is sufficient. I do not generally think it is good when people like Robert Byrd and Strom Thurmond serve until they die.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. Jenos Idanian #13 says:

    @al-Ameda: So, your standards are defined by those you oppose. As long as the guy (or gal) on your side isn’t as bad as the worst you can think of on the other side, it’s OK.

    And in Conyers’ case, the fact that you now see him as more of a liability than an asset means he should go.

    What a convenient moral standard you espouse, Al. Do you recommend it for everyone, or for only those with your ability to discern the nuances and niceties?

    Like or Dislike: Thumb up 0 Thumb down 1

  19. al-Ameda says:

    @Jenos Idanian #13:
    So, your standards are defined by those you oppose. As long as the guy (or gal) on your side isn’t as bad as the worst you can think of on the other side, it’s OK.
    ***Feel free to misrepresent what I said, that’s your prerogative.

    And in Conyers’ case, the fact that you now see him as more of a liability than an asset means he should go.
    ***No, not really … 26 terms is sufficient

    What a convenient moral standard you espouse, Al. Do you recommend it for everyone, or for only those with your ability to discern the nuances and niceties?
    *** I do not believe that suggesting that 26 terms in The House is sufficient, represents a “convenient moral standard.” Now, passing out Tobacco Lobby checks in The House, that touches on ethical and moral issues. You could look into to your support of Boehner and ask a few questions about convenient moral standards.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. Jenos Idanian #13 says:

    @al-Ameda: I really hope you’re planning on editing/correcting/deleting that, Al, ‘cuz I’d hate to accuse you of plagiarism…

    Like or Dislike: Thumb up 0 Thumb down 1

  21. Jenos Idanian #13 says:

    @al-Ameda: On the other hand, simply cutting and pasting my remarks without any commentary of your own just might get you an uptwinkle from me, as imitation is the sincerest form of flattery…

    Like or Dislike: Thumb up 0 Thumb down 2

  22. al-Ameda says:

    @Jenos Idanian #13:

    On the other hand, simply cutting and pasting my remarks without any commentary of your own just might get you an uptwinkle from me, as imitation is the sincerest form of flattery…

    I inadvertently hit the post comment button before I accurately and succinctly addressed your comments – so sue me.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. Jenos Idanian #13 says:

    @al-Ameda: Sue you? Please. Just a little gentle mockery.
    No malice. Well, OK, maybe just a little bit of malice, but not much.

    And I see you did edit your comments, so I’ll answer them before I get back to the barbecue.

    …and it still makes no sense. Your problem with Conyers boils down to a half-hearted endorsement of term limits?

    I’m ignoring your other comments, as they’re simple elaborations of your “at least he’s not as bad as the guys on the other side” diversion.

    Here’s how it plays out, in points you haven’t bothered to even try to address.

    1) Conyers, after being successfully elected 25 times, made a rookie mistake on his re-election process. (Actually, he made a bunch of them — I particularly appreciate how one of the guys hired to gather signatures was a violent felon and wanted fugitive)

    2) When his mistake blew up, he found a friendly judge to overturn the law on the legal precedent that “laws that inconvenience Democrats are unconstitutional.”

    Like or Dislike: Thumb up 0 Thumb down 0

  24. al-Ameda says:

    @Jenos Idanian #13:

    1) Conyers, after being successfully elected 25 times, made a rookie mistake on his re-election process. (Actually, he made a bunch of them — I particularly appreciate how one of the guys hired to gather signatures was a violent felon and wanted fugitive)

    2) When his mistake blew up, he found a friendly judge to overturn the law on the legal precedent that “laws that inconvenience Democrats are unconstitutional.”

    Two points:
    1. I appreciate the fact that, in our zero-tolerance environment, a ‘rookie mistake’ really should be enough to disqualify almost anyone from just about anything.
    2. I suppose that Conyers is to blame for the judge’s decision, although I am having a hard time figuring out why.

    Like or Dislike: Thumb up 1 Thumb down 0