UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JILL STEIN, et al.,
Plaintiffs, Case No. 16-14233
Hon. Mark A. Goldsmith
vs.
CHRISTOPHER M. THOMAS,
et al.,
Defendants.
____________________________/
ORDER DISSOLVING TEMPORARY RESTRAINING ORDER (Dkt. 16)
On December 5, 2016, this Court entered a temporary restraining order (“TRO”)
requiring Defendants “to cease any delay in the commencement of the recount of the presidential
vote cast in Michigan” and to “continue [the recount] until further order of this Court.”
12/5/2016 Op. & Order at 7 (Dkt. 16). Defendants appealed that order to the United States Court
of Appeals for the Sixth Circuit (Dkts. 22, 25).
On December 6, 2016, the U.S. Court of Appeals affirmed this Court’s grant of the TRO,
holding that it was not an abuse of discretion to “halt[ ] operation of the waiting period law,”
Mich. Comp. Laws § 168.882(3).1 See Stein v. Thomas, 12/6/2016 Order at 8, Case No. 16-
2690 (6th Cir. Dec. 6, 2016). The majority further stated that “[i]f, subsequently, the Michigan
courts determine that Plaintiffs’ recount is improper under Michigan state law for any reason, we
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Mich. Comp. Laws § 168.882(3) requires that “the board of state canvassers shall not begin a
recount unless 2 or more business days have elapsed since the board ruled on the objections
under this subsection . . . .” On Friday, December 2, 2016, the Board of State Canvassers ruled
on objections to the recount filed by Donald J. Trump on that same day. See Compl. ¶ 27. By
operation of the statute, the Board, therefore, could not commence the recount until two business
had passed, i.e., until Wednesday, December 7, 2016. Id. ¶¶ 28-29.
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expect the district court to entertain any properly filed motions to dissolve or modify its order in
this case.” Id.
Shortly after the Sixth Circuit issued its order, the Michigan Court of Appeals held that
the recount of the votes case in the presidential election should never have been initiated in the
first place, because Stein was not an “aggrieved candidate” as required to initiate a recount under
Mich. Comp. Laws § 168.879. See generally Attorney Gen. v. Bd. of State Canvassers,
12/6/2016 Op. & Order, Case Nos. 335947 & 335958 (Mich. Ct. App. Dec. 6, 2016). The
Michigan court found that the statute accorded “aggrieved” status only to a candidate who could
state in good faith that “but for mistake or fraud, the candidate would have had a reasonable
chance of winning the election” – a standard the Michigan court said the recount petitioner could
not satisfy. Id. at 5. Shortly after that ruling, Michigan Attorney General Bill Schuette, the
Michigan Republican Party, and the original Defendants each filed in this Court emergency
motions to dissolve the TRO (Dkts. 26, 28, 29). This Court immediately entered an order for a
hearing on the motions, which was conducted earlier today.
All agree that the initial justification for the TRO — i.e., Plaintiffs’ challenge to the two-
day rule — is no longer at issue. Recognizing this fact, Plaintiffs filed an amended complaint
(Dkt. 30) before filing their response to Defendants’ motions to dissolve the TRO (Dkt. 33),
broadening their claims in this case. Based on the assertion that there may have been fraud or
other mistakes in the recordation of the votes, they now assert that any act by Defendants that
“jeopardizes completion” of a recount amounts to maintaining a system of voting that denies
Michigan voters the right to have their votes counted, in violation of their rights under the equal
protection clause, the due process clause, and the First Amendment.
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In tandem with their new claims, Plaintiffs’ response to the motions to dissolve argues
that the TRO should be preserved on either of two alternative bases: (i) that the Michigan Court
of Appeals’ ruling on the “aggrieved party” issue represents a “distorted interpretation of the
text” of Mich. Comp. Laws § 168.879, see Pls. Resp. at 3-4; and (ii) that Plaintiffs have a federal
constitutional right to a recount independent of the state statutory scheme providing for a
recount, see id. at 10. The Court finds neither argument persuasive.2
Plaintiffs argue that the Michigan Court of Appeals abrogated the authority of the
Michigan Legislature by interpreting the term “aggrieved” incorrectly. Id. at 2-3. Recognizing
that federal courts typically avoid overruling a state court’s interpretation of state law, Plaintiffs
invoke precedents from the momentous litigation surrounding the 2000 presidential election, in
which the Supreme Court addressed when such traditional deference need not be accorded.
Plaintiffs’ theory is that those cases establish an allowance for federal courts to ignore certain
state court pronouncements on state election laws concerning presidential elections in certain
circumstances. However, Plaintiffs overstate the impact of these precedents and, in any case,
ignore crucial differences between those cases and ours.
2
As to the first issue, Intervenor Schuette argues that the law of the case doctrine requires this
Court to simply accept the decision of the Michigan Court of Appeals without further analysis,
on the theory that the Sixth Circuit has already decided that any ruling from the Michigan courts
would be dispositive on Michigan law. However, in the present circumstances, the application of
the law of the case doctrine is less than clear. It comes into play with respect to issues
“previously determined” by a higher court. Bowling v. Pfizer, Inc., 132 F.3d 1147 (6th Cir.
1998). Here, the Sixth Circuit’s decision did not require an answer to whether a forthcoming
Michigan court ruling would have to be accepted without further analysis; nor was the Sixth
Circuit presented with the arguments Plaintiffs have made in response to the motions to dissolve
the TRO. Further, it did not specifically direct this Court to accept any ruling by a Michigan
court without further analysis. Instead, it directed this Court to “entertain” any motion to dissolve
the TRO should there be a Michigan court ruling denying a right to a recount. This Court has
done precisely that. Because the applicability of the doctrine is less than certain, this Court
proceeds to consider Plaintiffs’ arguments on the merits.
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In Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000) (Bush I), a Florida
election official had declined to waive the statutory deadline for submitting recount returns, but
the Florida Supreme Court nevertheless extended the deadline by 12 days. In reviewing the
Florida Supreme Court’s decision, which had interpreted Florida election laws, the Supreme
Court expressed its apprehension that, in interpreting the election laws enacted by the Florida
Legislature, the Florida Supreme Court had concluded that its legislature potentially was
“circumscribe[d]” by the state constitution. Id. at 78. The U.S. Supreme Court recognized that
Article II, § 1 grants the authority to select electors directly to the state legislatures, id. at 76-77,
notwithstanding any limitations on that authority purporting to flow from another source of law,
such as the state constitution. Accordingly, it remanded to the Florida Supreme Court for
clarification of the basis of the ruling. Importantly, however, Bush I did not purport to overrule a
state court ruling – rather, it sought clarification whether the state court had viewed itself
constrained by its state constitution to the extent that its organic law was at variance with the
legislative intent as evidenced by the statute itself. See Bush I, 531 U.S. at 77-78.
In Bush v. Gore, 531 U.S. 98, 101 (2000) (Bush II), the Supreme Court concluded (under
a variety of theories endorsed by different Justices) that continuation of the Florida recount could
not be conducted consistent with the U.S. Constitution in sufficient time to take advantage of the
“safe harbor” provision in 3 U.S.C. § 5. In a concurrence to the per curiam opinion in Bush II,
Chief Justice Rehnquist, joined by Justices Thomas and Scalia, elaborated further, stating that,
with respect to statutes enacted pursuant to Article II, § 1’s grant of authority,
the general coherence of the legislative scheme may not be altered
by judicial interpretation so as to wholly change the statutorily
provided apportionment of responsibility among these various
bodies. In any election but a Presidential election, the Florida
Supreme Court can give as little or as much deference to Florida’s
executives as it chooses, so far as Article II is concerned, and this
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Court will have no cause to question the court’s actions. But, with
respect to a Presidential election, the court must be both mindful of
the legislature’s role under Article II in choosing the manner of
appointing electors and deferential to those bodies expressly
empowered by the legislature to carry out its constitutional
mandate.
Id. at 114 (Rehnquist, C.J., concurring).
The theory of the concurrence — a federal judicial override of state court determinations
of state election laws in presidential elections — was not endorsed by a majority of the court.
Indeed, it sparked disagreement by Justice Stevens (joined by Justices Ginsberg and Breyer). Id.
at 124 (“Neither [3 U.S.C.] § 5 nor Article II grants federal judges any special authority to
substitute their views for those of the state judiciary on matters of state law.”). Thus, it is unclear
to what extent a federal court may utilize the less deferential approach that may be located in
some of the Bush opinions.
Whatever may be the vitality of the doctrine that Plaintiffs invoke, it has no application
here. The Michigan Court of Appeals’ interpretation of its election laws does not alter “the
general coherence” of the legislative recount scheme enacted in Mich. Comp. Laws § 168.879.
It is at least arguable that the Michigan Legislature intended to confine costly and disruptive
recounts to cases where a losing candidate stood a reasonable chance of changing the outcome of
the election. That is certainly the typical petitioner for a recount, and nothing has been placed in
the record to suggest that the Legislature may have had in mind a petitioner simply wishing to
confirm the voting results, notwithstanding the absence of any reasonable likelihood of changing
the result. Further, the Michigan court utilized traditional tools of analysis to reach that result,
pointing to dictionaries and precedents in other contexts where the “aggrieved” concept is
utilized in Michigan law. Plaintiffs offer cogent reasons to challenge the Michigan court’s
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conclusions, but none leads to the conclusion that the Michigan court disregarded or plainly
misread the legislature’s intent.
This is a far cry from the Bush litigation. In Bush I, the Florida Supreme Court invoked
its “equitable powers” to override an express 7-day deadline found in the statute and extend it by
12 days. See Bush I, 531 U.S. at 75-76. The U.S. Supreme Court’s remand was based on its
suspicion that the Florida Supreme Court arguably had impermissibly attributed its decision to an
irrelevant source of law — that is, something other than the state legislature exercising its
delegated Article II powers. Id. Here, the Michigan Court of Appeals neither ignored a statutory
term, nor is there a hint that it was basing its decision on something other than the statute; it
merely made an arguable interpretation of the statute before it. It cannot be said that the
Michigan Court of Appeals “departed from the statutory meaning,” Bush II, 531 U.S. at 115, or
recognized a limitation on the legislature’s Article II powers in the same way that the Florida
Supreme Court may have attempted to do in Bush I.
Because there is no basis for this Court to ignore the Michigan court’s ruling and make an
independent judgment regarding what the Michigan Legislature intended by the term
“aggrieved,” Plaintiffs have not shown an entitlement to a recount under Michigan’s statutory
scheme.
Nor have Plaintiffs shown an entitlement to a recount that derives from a source other
than the recount procedures established by the Michigan Legislature. It is true that presidential
candidates and voters, once enfranchised by a state legislature, have a general right to have the
vote counted fairly. See, e.g., Bush II at 104-105. But unlike Plaintiffs’ first argument — which
invokes the right to have a state’s statutory election machinery applied as the legislature dictated,
and may be made whenever the statute is violated — Plaintiff’s second argument certainly
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requires facts amounting to an actual impact on the right to vote. There is no case law
recognizing an independent federal right to a recount that either this Court or the parties have
come across, in the absence of actual deprivation of voting rights. Rather, Plaintiffs’ asserted
right to a recount is just a restatement of her right to participate in a fair election, free from
tampering or mistake. But, to date, Plaintiffs have not presented evidence of tampering or
mistake. Instead, they present speculative claims going to the vulnerability of the voting
machinery -- but not actual injury. Because mere potentiality does not amount to a claim that the
vote was not fairly conducted, Plaintiffs’ new claims are insufficient to maintain the existing
TRO. No likelihood of success on that claim has been shown.
The issues that Plaintiffs raise are serious indeed. The vulnerability of our system of
voting poses the threat of a potentially devastating attack on the integrity of our election system.
But invoking a court’s aid to remedy that problem in the manner Plaintiffs have chosen —
seeking a recount as an audit of the election to test whether the vulnerability led to actual
compromise of the voting system — has never been endorsed by any court, and would require, at
a minimum, evidence of significant fraud or mistake — and not speculative fear of them. Such
evidence has not been presented here.
For all these reasons, this Court dissolves the TRO effective immediately.
SO ORDERED.
Dated: December 7, 2016 s/Mark A. Goldsmith
Detroit, Michigan MARK A. GOLDSMITH
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court’s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on December 7, 2016.
s/Karri Sandusky
Case Manager
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