Sixth Circuit puts the ball back in legislators’ court
By Kristine Christlieb, Michigan Fair Elections Institute Senior Correspondent
December 24, 2024
Based on lack of standing, a three-judge panel from the U.S. Sixth Circuit Court of Appeals unanimously ruled against Michigan legislators battling to protect their responsibility for governing the state’s federal elections. The legislators and their attorney are conferring about whether to appeal the decision to the Supreme Court of the United States (SCOTUS).
Chief Judge Jeffrey Sutton, writing for the panel, said, “Because they lack standing to bring the lawsuit, we affirm the district court’s dismissal under Civil Rule 12(b)(1).” President George W. Bush appointed Sutton to the 6th Circuit Court in 2003.
The case centers on two Michigan ballot initiatives used to regulate elections. Proposal 3 passed in 2018 and Proposal 2 passed in 2022. Since the proposals’ provisions apply to both federal and state elections, a group of 11 Michigan legislators claimed the proposals were unconstitutional because they totally bypassed the state legislature in violation of the U.S. Constitution. Its Elections Clause (Article I, Section 4) prescribes the power to regulate the time, place, and manner of elections to elected state legislatures.
According to the court, a plaintiff — in this case, the Michigan legislators — must show a real and untheoretical injury in order to have standing to sue. The ruling went so far as to state, “True, a concrete injury may ‘include harms specified by the Constitution itself.’”
The Court acknowledged conflicting case law on the matter of standing, and the ruling stated, “It is indeed odd that Raines denies standing for legislators whose votes are “less ‘effective’ than before,” yet Coleman permits standing for legislators whose votes are “virtually held for naught.'”
In the face of conflicting case law, the court chose to go with the rule that “individual legislators ‘lack standing to assert the interests of a legislature,’” but the entire legislature may sue when it suffers “institutional” injury.
Sutton also pointed out that federal courts have been “skeptical” of individual legislators bringing constitutional challenges. But there have been two exceptions. In the first exception, both the Arizona House and Senate sued. In the second, a controlling block of the Kansas Senate filed the lawsuit.
Sutton wrote: “In today’s dispute, the Michigan legislators fall within the general rule, not within these narrow exceptions.”
“With every decision, we learn more about the Court’s objections,” explained Michigan Fair Elections Institute's Founder and Chair Patrice Johnson. “There may yet be ways to frame the legislators’ position to show they have standing.”
Johnson wonders if the court may have opened several points of entry. For one, it seemed to suggest the case belonged at the Supreme Court level, writing, “But our station gives us no right to change Supreme Court precedents or redraw the lines created by them.”
In a brief email to his clients, reporting the court’s decision and signaling his desire to persevere, Constitutional law expert Erick Kaardal wrote: “The 6th Circuit affirmed the lower court decision. We will start the petition to the U. S. Supreme Court as soon as possible.”
Representative Jim DeSana (R), responded with disappointment to the decision. He and other legislators wondered “if a resolution from the entire Michigan House of Representatives would have the impact to alter the decision of individual members having standing. In light of the fact that we now have a majority in the House, 58 to 52.”
The eleven legislators joining in the lawsuit are Senators Jonathan Lindsey, Jim Runestad (R) and Representatives Steve Carra (R) James DeSana (R), Joseph Fox (R) Neil Friske (R), Matt Maddock (R), Brad Paquette (R), Angela Rigas (R), Joshua Schriver (R), and Rachelle Smit (R).
The defendants in the lawsuit are Governor Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Jonathan Brater, director, Michigan Bureau of Elections.
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I do recall...about 2 years ago...when speaking on the phone with a Michigan Bureau of Elections worker...that that worker was highly upset and said "they changed the Michigan Constitution!" [With these new rules]. It seemed obvious that she was distraught with the new Election "laws"