Socialist Party Files Application for Leave to the Michigan Supreme Court in Ballot Access Lawsuit Against the State

The Socialist Party of Michigan filed an application for leave to appeal to the Michigan Supreme Court last week, in its lawsuit challenging both the constitutional and statutory validity of the Party’s exclusion from the Michigan ballot under Michigan Secretary of State’s present application of the state’s legislatively enacted political party access requirements.

The Party’s case, Socialist Party of Michigan v. Secretary of State (SCt No. 142163; COA No. 299951; TCt No. 10-867-CZ) was initially filed in the 30th Circuit Court of Ingham County on July 21st and assigned to Judge William E. Collette.

Following a claim of laches (an affirmative defense alleging a failure to assert one’s right in a timely manner) by the Secretary of State, in its response to the SPMI’s motion for summary disposition, Judge Collette ordered the case’s dismissal on the ground of laches, in spite of the state’s failure to articulate any form of negligent delay underlying the timing of the SPMI’s filing, or prejudicial injury resulting therefrom, as must be jointly proven with any successful laches defense under present judicial requirements…

Following the circuit court’s ruling, the SPMI filed a motion for reconsideration, highlighting the clear legal error underlying its acceptance of the state’s laches defense as an applicable ground for the case’s dismissal. Upon subsequently receiving no reply from the circuit court by the following week’s motion day, the SPMI filed an emergency appeal to the Court of Appeals on Wednesday September 1st, whereupon it was assigned the appellate panel of judges Stephen L. Borrello, Michael J. Kelly, and Peter D. O’Connel

Due, most ostensibly, to the greatly limited time frame available for the Court of Appeals panel to review the case (requiring a decision in under 48 hours from the time it was filed) however; the appellate panel affirmed the trial court’s ruling in a two page unpublished opinion that once more neglected to directly address the merits of any of the SPMI’s constitutional claims.

While providing no reference whatsoever to the controlling case law concerning the Michigan Constitution’s “Purity of Elections” Clause, on which the SPMI based its principal constitutional argument, the appellate panel provided only brief and general reference to the SPMI’s distinctly presented equal protection arguments. In that portion of the opinion, the appellate panel cited Michigan Supreme Court case of Harvey v. Michigan, 469 Mich 1, (2003), concerning the limited application of a strict, rather than “highly deferential,” standard of judicial scrutiny to equal protection challenges made to laws involving classifications based on “suspect categories” (i.e. ‘protected classes’) as its basis for construing that the SPMI had “not appl[ied] an equal protection framework to [its] analysis of [Michigan’s party ballot access statute] MCL 168.685.”

In overlooking the SPMI’s equal protection claims on that basis, the appellate panel quite evidently failed to observe any of the three references, noted in separate portions of the Harvey Court’s opinion from that cited by the appellate panel, to the long established exception to such a highly deferential review standard to equal protection challenges that exists when such challenges are made to laws which operate to “impinge[] on the exercise of a fundamental right.” Consequently, the appellate panel additionally failed to apply the mandatory balancing tests outlined throughout the many decades of prior U.S. and Michigan Supreme Court decisions that explicitly affirm the proper application of a “fundamental right”-based review standard to equal protection challenges in ballot access cases.

In addition to the appellate panel’s failure to properly review the SPMI’s constitutional claims, the appellate panel further erroneously construed the SPMI’s alleged failure to comply with the requirements of the MCL 168,685 statute, as contended by the state, to have been an “undisputed” point of underlying fact – not withstanding the substantial portions of content dedicated to explicitly disputing this allegation in both the appellate and trial court briefs that the SPMI had submitted. Such an erroneous construction of the facts by the Court of Appeals panel, as to the contested status of this allegation by the state, consequently further precluded the Court from properly construing the legal grounds underlying the SPMI’s statutorily-based claims.

In correspondingly taking note of the Michigan Court of Appeals panel’s strikingly conspicuous failure to even acknowledge, much less assess the merits of, the SPMI’s principal constitutional claims, the recent October 2010 edition of Ballot Access News pointedly observed, within its monthly report on recent ballot access litigation around the U.S .that “the decision is only two pages, and the judges didn’t even seem to understand the issue.”

In reference to the same state constitutional claim that Ballot Access News has chiefly emphasized in its most recent and prior news updates on the case’s proceedings, SPMI State Chairperson Matt Erard further noted that “the SPMI’s present ballot accesses challenge is not one that relies upon persuading the courts to adopt any new construction of the relevant law at hand. The controlling principles that the Michigan courts have already established on directly parallel legal questions apply just as squarely to the grounds on which our lawsuit challenges the validity of Michigan’s current ballot access scheme.”

While challenging the present Michigan statute on multiple different constitutional grounds, the SPMI’s case particularly challenges its validity under the Michigan Constitution’s “Purity of Elections” clause, which the Michigan Supreme Court found to prohibit the state from imposing an inequitably higher standard of voter support on “new” parties seeking to qualify for the ballot than that imposed on automatically returning parties seeking to directly retain their qualification from the preceding election. (Socialist Workers Party v. Secretary of State, 412 Mich. 571 [1982]).

As outlined in the SPMI’s present case, subsequent legislative amendments enacted since the time at which the Court struck down the statute’s contemporaneously prior formulation in the Socialist Workers Party case have operated to, not only reestablish such a disparity, but also further widen the inequitable qualification requirements between “new” and returning parties to a far greater level of severity than that imposed by the previously formulated requirements in place at the time of the Court’s 1982 Socialist Workers Party ruling itself.

As a result of this gradually reestablished disparity, as applied to the forthcoming 2012 general election, a “new” party must now demonstrate support from more than double the number of Michigan voters, by means of valid petition signatures, that a returning party is required to demonstrate, by means of votes cast for any one of its nominated candidates.

Moreover, while at least one “new” party qualified for the ballot in all but one of the 23 general elections held between the 1954 enactment of the present state election code and the close of the 20th Century, not a single new party has successfully qualified for the Michigan ballot in any of the past five state general elections held over the course of the past decade.

While Michigan is joined by no additional state other than Kansas in requiring a higher voter support threshold from “new” parties than returning parties seeking to qualify for its state ballot in each election, the scale of such disparity imposed under the present Michigan ballot access scheme stands nationally unparalleled.

Consequently, the SPMI case aims to highlight the ironic, albeit lamentable, fact that Michigan has now come to combine its impartment of the most drastic level of unfair ballot access advantages to returning parties over new parties, among any state in the nation, with the nation’s most concrete and strictly articulated state constitutional prohibition of such a practice.

In addition to its constitutional arguments presented under the Michigan Constitution’s “Purity of Elections” Clause, and corresponding claims under the 1st and 14th amendments to the federal constitution, the Socialist Party’s present case is additionally challenging its exclusion from the ballot under the facial requirements of the governing statute itself.

In noting that the 2002 amendment to Michigan’s party ballot access statute removed the statute’s prior wording, specifying that a party’s “principle” (i.e. highest vote-receiving) candidate must necessarily be listed in the party column of the political party that his or her candidacy represents, the Socialist Party additionally challenges the Secretary of State’s present conflation of the present statutory requirements with those enacted prior to the 2002 amendment, by asserting within each version of its biennially updated “Political Party status” document that a minor party’s ballot qualification is determined by “the greatest number of votes received by any candidate whose name appeared in the party’s column on the [preceding] general election ballot” [Emphasis added].

In taking further note of the facts that (i) Michigan’s “principal candidates” have received approximately 4.5 and 4.8 times the number of votes required for subsequent party access in the 2008 and 2010 general elections respectively (and likewise respectively received 3.5 and 4.5 times the required number of votes in the 2004 and 2006 general elections before those); (ii) that the Socialist Party was the initial party to nominate its “principal candidates” in the 2008 and 2010 elections – who both accordingly continued to campaign as Socialist Party candidates both before and after receiving the secondary nomination of the Green Party; (iii) that the Socialist Party formally certified its initial nomination of its 2010 principal candidate to the Secretary of State’s office in precise compliance with all of the pertaining statutory requirements; and (iv) that the Secretary of State ignored the provisions of the Michigan election code requiring default placement of dual-party nominated candidates in the column of the party that first certifies their nominations; the SPMI’s Supreme Court application further highlights the fact that “by the terms of the Michigan Election Code, Plaintiff-Appellant SPMI has qualified for the 2010 general election ballot,” and likewise satisfied the statutory requirements for holding ballot qualification in the forthcoming 2012 general election as well.

Correspondingly, the SPMI is personally joined by Co-Plaintiff-Appellant Dwain Reynolds in the suit, whose grounds for challenging the SPMI’s denial of ballot access stem from his status as both an SPMI-supporting voter and as the Party’s “principal candidate” in the last preceding November election to have been held at the time of the case’s initial July 2010 filing.

In light of the case’s explicit satisfaction of all five of the Supreme Court’s officially designated grounds for applying for leave from a Court of Appeals decision, and correspondingly exceptional combination of distinguishingly apposite factors for obtaining Supreme Court appellate review, with respect to the particular parties, issues, and lower appellate court errors involved, Socialist Party members and supporters remain confidently hopeful about the State Supreme Court’s acceptance of the Party’ leave application during the opening months of its forthcoming 2011 session.

“The overarching question now hinging on the Supreme Court is whether the state’s judiciary will operate to equivalently deny the fundamental and legal rights of Socialist voters in the courts as the state’s other two branches of government have long operated to deny them at the ballot box,” Erard added.

The SPMI’s leave application brief submitted to the MI Supreme Court can be read online at:

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