Judge rejects request to suspend order easing Michigan petition signature requirements

By Christine Ferretti and Mark Hicks | The Detroit News

U.S. District Court Judge Terrence Berg on Monday had ordered the state to extend the candidate filing deadline to May 8 for candidates seeking to appear on the Aug. 4 primary ballot and to accept nominating petitions that met 50% of the signature requirement due to the difficulties of collecting signatures in the midst of the pandemic.

The state's Attorney General's Office challenged that ruling that overrode Gov. Gretchen Whitmer's refusal to extend the deadline.

In his order issued early Saturday, Berg said the state "ignores the glaring inequity at the heart of this case: Before the court is evidence from multiple candidates that but for the state’s own last-minute intervention in the homestretch of the signature gathering time period, the plaintiffs in this case would have been able to gather enough signatures to secure a place on the Aug. 4, 2020, primary ballot.

"If there had not been a March 23, 2020, Stay-at-Home Order, this case would not exist."

Berg heard arguments Thursday from the state as well as testimony from some of the candidates who have argued that the state's stay-at-home order has been detrimental to their campaigns.

The state asked Berg to stay his ruling after a congressional candidate who filed a March lawsuit over the issue met the signature requirements that he'd been challenging.

The state also has filed a challenge of Berg's ruling with the Sixth Circuit Court of Appeals.

Berg ended the hour-long hearing Thursday by asking all parties to submit pleadings by noon Friday indicating how many signatures they had when Whitmer's order went into effect March 23, and if they were able to meet the previously existing signature requirement by April 21. The judge also sought details on whether the candidates had tried mail campaigns, how much it cost them and the rate of return on the petition sheets that went out.

Eric Esshaki, a Republican candidate for the 11th Congressional District who filed the lawsuit, submitted his nominating petition to the Secretary of State’s office by the Tuesday deadline with roughly 1,200 signatures, a little over the 1,000 signature threshold.

The state, in its motion, argued Esshaki's submission should be considered new evidence and enough to warrant suspension of Berg's order while the appeals process played out.

"There doesn't seem to be any demonstration of need for an across the board, 50% reductions in signatures," said Heather Meingast, an assistant attorney general.

The May 8 deadline extension, combined with new electronic gathering policies adopted by the state, may be "untested" but not "as difficult as people suggest," she added.

In his order Saturday, Berg said Esshaki’s "last-minute success in receiving signatures through the mail suggests that the postal service in his area may be operating more efficiently than had earlier been reported."

"It is not evidence that the same can be said for the entire state, where delays continue to be reported," Berg said.

The judge went on to note that other candidates would need many more signatures to meet the statutory requirements to qualify and "have not reported signature petitions spontaneously appearing in their mailboxes. … If any of these signatures had to be gathered by means that violated the Stay-at-Home Order, surely such success in 'lawlessly' gathering signatures should not be considered proof that there is no need to reduce the signature requirement."

Berg also noted testimony in the case describing "the extreme lengths that candidates have been forced to go to in order to collect in-person signatures by means that do not violate the Stay-at-Home Order."

In one example, the judge cited an Ann Arbor candidate described having met “supporters in parking lots and open spaces, where they threw plastic bags of completed petitions" for the candidate "to catch.”

Such moves, Berg wrote, are "clearly not scalable for candidates who need to collect thousands of signatures."

Esshaki on Thursday told Berg that despite collecting more signatures than the new threshold calls for, he intends to continue his lawsuit. He's not sure that he's actually obtained enough valid signatures. About 100 petition forms were delivered to his mailbox on Monday, he said.

"We decided to submit the petitions, not being able to vet them thoroughly, not running them by an election attorney to check for technical requirements, and that is the primary reason why we are continuing the suit," he told Berg.

Esshaki, who seeks to run against incumbent Democratic U.S. Rep. Haley Stevens, D-Rochester Hills, issued a statement Saturday morning saying the filing was an abuse of the governor's political power.

“Whitmer is out for vengeance because I defeated her in court and upheld the Constitution," Esshaki said. "This second legal attack was clearly retaliation directed by her and her new political staff."

Also addressing the judge Thursday was Deana Beard, a candidate for Third Circuit Court judge, who joined Esshaki's lawsuit. She said that it's "not realistic to get thousands of signatures through electronic means."

"I would have been on the ballot but for the executive orders and this pandemic," said Beard, who turned in her 3,610 signatures Monday. The minimum for signatures prior to Berg's ruling had been 4,000.

In his order Saturday, Berg said some candidates "would be harmed if a stay were to be granted. Nor would the public interest in the fair administration of ballot access requirements be served by a stay of the court’s order."

Berg called the 50% reduction "warranted, and defendants have failed to demonstrate that they are likely to prove this court abused its discretion in reducing the signature requirement by 50% on appeal."

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