“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Sixth Circuit Judge John Bush cast the deciding vote to stay parts of a district court order that granted relief from Michigan’s petition signature requirements for electoral candidates in light of the COVID-19 pandemic, including parts that the state itself did not contest. The May 2020 decision was in Esshaki v. Whitmer.
Michigan state law requires candidates running for state and national office to collect petition signatures for their names to appear on the state’s primary ballot. Amid the COVID-19 pandemic, statewide stay-at-home orders have impeded several candidates from collecting enough signatures by the petition deadline. They filed suit in federal district court.
After briefing and hearing arguments, the court issued a preliminary injunction that 1) stopped the state from enforcing the petition requirements and provided that 2) the signature requirements be reduced by 50 percent, 3) electronic signatures be permitted and 4) the filing deadline of April 21 be extended two weeks.
The state sought a stay in the Sixth Circuit of the portion of the injunction that reduced the signature requirements. But in an unsigned order in which Trump judge Bush was the deciding vote, the court went further and effectively reversed the parts of the order that extended the deadline and allowed electronic signatures. The majority argued that such affirmative injunctions were not permissible and that the state should adopt its own adjustments to the requirements.
Judge Jane Stranch strongly dissented from the part of the decision that stayed the district court’s affirmative order. As she explained, the state had asked “only” that the 50 percent reduction order be stayed pending appeal, and “did not challenge” the deadline extension and use of electronic signatures, which was similar to what the state itself suggested in the lower court. She also pointed out that the majority’s claim about affirmative injunctions “conflicts with the Supreme Court’s governing precedent and our own,” which clearly permit such relief.
In addition, Stranch went on, the majority’s order will cause “significant confusion” and “may well” cause some candidates “to be left off the August ballot” as the case continues. The result will harm the “candidates’ right to associate” and run for office, she concluded, as well as “the rights of voters to cast their votes effectively.
As in too many other cases relating to the COVID-19 pandemic, Trump judge Bush has thus damaged constitutional rights without justification, this time when the state itself did not even request it.