Kristine Christlieb, Michigan Fair Elections Institute Senior Correspondent
December 16, 2024
Lawyers representing 11 Michigan legislators are battling to keep alive an election-related lawsuit dismissed in April for lack of standing.
Constitutional law expert Erick Kaardal delivered oral arguments on Wednesday to a three-judge panel in the U.S. Sixth Circuit Court of Appeals. Click the button below to listen to 30-min hearing:
In the original case, filed in September 2023, the group of Michigan lawmakers claimed their constitutional rights had been violated.
Invoking the U. S. Constitution’s Elections Clause (Article I, Section 4) — which gives state legislatures the authority to regulate the time, place, and manner of federal elections — the legislators said their authority was usurped when ballot initiatives in 2018 and 2022 were used to amend the state constitution’s election laws and bypassed the state legislature.
State-wide ballot initiatives are increasingly controversial, especially when financed by activist organizations outside the state. Representative Steve Carra (R), chair of the Michigan House Freedom caucus and a plaintiff in the lawsuit, said, “We’re seeing enormous outside influence on our state’s elections. The far Left struggles to win in a fair election, so their national strategy is to corrupt swing-state elections. One of their tactics is to take the legislature out of the process.”
Lack of Standing
On April 10, Biden-appointed U.S. District Judge Jane M. Beckering dismissed the original lawsuit, not on the merits of the usurpation claim but because the court said the legislators did not have “standing,” a legal term meaning they were not the right people to bring the lawsuit.
“Lack of standing has been the issue in dozens of election-related cases filed in the last four years,” explained Michigan Fair Elections Institute (MFEI) founder and chairman Patrice Johnson. “We hope this will be the case that breaks the curse.”
State Senator Jonathan Lindsey (R), another plaintiff in the case, told MFEI, “I disagree with the judge’s decision to deny my right as a legislator to protect the role granted to me by the U.S. Constitution. When a federal judge misuses their power by denying a valid case to be heard, it damages our entire body politic.”
Attorney Kaardal summarized the issues: “This appeal concerns a critical jurisdictional issue in the development of federal election integrity litigation. To begin, the 2018 and 2022 constitutional amendments to the Michigan Constitution bypassed the state legislature by using the citizen-petition-and-referendum process. Although this process works for other subject matters, it doesn’t constitutionally work for federal election law subject matter because the U.S. Constitution’s Election and Electors Clauses require the state legislatures to be involved in federal election law-making. Jurisdictionally, our view, consistent with U.S. Supreme Court and Michigan Supreme Court decisions, is that state legislators are the injured parties here and have standing to bring the constitutional claims against the validity of the 2018 and 2022 constitutional amendments.”
How the Judges Responded
The three-judge panel was composed of one George W. Bush appointee (Jeffrey S. Sutton, chief judge) and two Trump-appointed judges (John K. Bush and Eric E. Murphy).
Kaardal, who addressed the judges first, ran into early headwinds. But the judges were equally pointed in their questioning of the defendants’ counsel, making it hard to predict the direction of their decision.
The defendants in the lawsuit are Governor Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Jonathan Brater, director, Michigan Bureau of Elections.
Kaardal offered this prediction, “If the judges follow the Constitution, we will prevail.”
Regardless of the appeals court outcome, one thing is sure: The loser is likely to appeal to the U.S. Supreme Court.
The other nine legislators joining in the lawsuit are Senator Jim Runestad (R) and Representatives 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).
Kristine Christlieb serves as senior correspondent on MFE's communications team. She publishes Trust but Verify on Substack: https://open.substack.com/pub/trustbutverifyreport/p/voter-registration-blitzkrieg?r=2haa2x&utm_campaign=post&utm_medium=web
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The views and opinions expressed in this commentary are those of the authors and do not reflect the official position of the Michigan Fair Elections Institute. Every article written by an MFEI author is generated by the author or editor alone. However, links or images embedded within the article, may have been generated by artificial intelligence.