Joel Crookston v. Ruth Johnson

841 F.3d 396, 2016 FED App. 0266P, 2016 U.S. App. LEXIS 19494, 2016 WL 6311623
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 28, 2016
Docket16-2490
StatusPublished
Cited by46 cases

This text of 841 F.3d 396 (Joel Crookston v. Ruth Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joel Crookston v. Ruth Johnson, 841 F.3d 396, 2016 FED App. 0266P, 2016 U.S. App. LEXIS 19494, 2016 WL 6311623 (6th Cir. 2016).

Opinions

SUTTON, J., delivered the decision of the court in which GUY, J., joined. GUY, J. (pp. 401-02), delivered a separate concurrence. COLE, C.J. (pp. 402-05), delivered a separate dissent.

ORDER

SUTTON, Circuit Judge.

One hundred and twenty-five years ago, Michigan enacted a law designed to protect the secret ballot by forbidding voters from exposing their marked ballots to others. Nine years ago, Apple introduced a cell phone capable of taking photographs and uploading them’ to the Internet. Thirty-two days ago, Joel Crookston sought a preliminary injunction to prevent the State from enforcing the Michigan law in the upcoming election so that he could take a “ballot selfie” with his cell phone and post it on social media. Four days ago, the district court granted his motion, which state officials immediately asked us to stay.

[398]*398Timing is everything. Crookston’s motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full—after this election. With just ten days before the November 2016 election, however, we will not accept his invitation to suddenly alter Michigan’s venerable voting protocols, especially when he could have filed this lawsuit long ago. For these reasons and those below, we grant the Secretary of State’s motion to stay the district court’s preliminary injunction.

On November 6, 2012, Crookston took a picture of his completed ballot for the Michigan State University Trustee election, where he had written in the name of a former college classmate, and posted the picture on Facebook. Nearly four years later, with another, slightly bigger election approaching, Crookston filed this lawsuit to vindicate his right to post another “ballot selfie”—this time with his completed ballot for the state and federal elections on November 8, 2016.

One premise of Crookston’s lawsuit is correct. Michigan law forbids him from taking a picture of his marked ballot at one of the State’s polling places and sharing it on social media. In general elections, Michigan provides that, “[i]f an elector shows his or her ballot ... to any person other than a person lawfully assisting him or her ... or a minor child accompanying that elector ,. ■. after the ballot has been marked ... the ballot shall not be deposited in the ballot box, but shall be marked ‘rejected for exposure’.... [A] note of the occurrence shall be entered on .the poll list ... and the elector shall not be allowed to vote at the election.” Mich. Comp. Laws § 168.738(2). The Secretary of State has issued instructions to local election officials banning “the use [of] video cameras, cell phone cameras or video recording, cameras, television [and] recording equipment ... in the polling places,” with a limited exception for the news media. R. 1 at 5.

The district court granted Crookston’s motion to enjoin the enforcement of these rules in the November election, and it denied the Secretary’s request for a stay of that order. The Secretary sought an emergency stay of the preliminary injunction from our court.

When faced with a motion for a stay pending appeal, we consider (1) the likelihood that the party seeking the stay will prevail on the merits; (2) the likelihood that the moving party will be irreparably harmed; (3) the prospect that others will be harmed by the stay; and (4) the public interest in the stay. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006).

There are many reasons to grant the stay. The first and most essential is that Crookston offers no reasonable explanation for waiting so long to file this action. When an election is “imminen[t]” and when there is “inadequate time to resolve [] factual disputes” and legal disputes, courts will generally decline to grant an injunction to alter a State’s established election procedures. See Purcell v. Gonzalez, 549 U.S. 1, 5-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). That is especially true when a plaintiff has unreasonably delayed bringing his claim, as Crookston most assuredly has. See Operating Engineers Local 324 Health Care Plan v.G & W Constr. Co., 783 F.3d 1045, 1053 (6th Cir. 2015); Nader v. Blackwell, 230 F.3d 833, 835 (6th Cir. 2000); Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980). Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.

No such reason appears here. The challenged rules are not new. Michigan’s ban [399]*399on ballot exposure dates to 1891, and today’s version of these laws has been on the books since 1996. Even Crookston cites a news story showing that the Secretary’s ban on recording devices at the polls has been in place since (at least) 2008. And his own complaint acknowledges that the Secretary posted notice of the ban on her website in October 2014. Nor did Crook-ston just acquire a cell phone or just become eligible to vote, as his 2012 ballot selfie confirms. Yet Crookston chose to wait until September 9, 2016 to challenge the rules, and did not move for a preliminary injunction until September 26.

Crookston offers no explanation for his delay—other than what he calls the “reasonable” likelihood that the Secretary would construe the statutes to permit ballot selfies. Appellee’s Br. 7. But what makes that possibility reasonable he never says. Best we can tell, he means only that it is always possible for the Secretary to make election-protocol changes. If that reality sufficed to justify a delay of litigation, however, we would be encouraging sluggish election-procedure challenges rather than deterring them—just the opposite of the Purcell principle. Crookston offers no proof that the Secretary was considering any such changes or that anyone asked her to make them. All of this should impress on Crookston, and other would-be challengers to election protocols, the need to bring as-applied (and for that matter facial) challenges sooner rather than later—first to give election officials an opportunity to make corrections where corrections are due and second to give district and appellate courts ample timé to resolve the merits of the dispute long before the election. A manufactured emergency does not warrant emergency relief.

Crookston’s belated challenge to Michigan’s election procedures prejudices the State’s interest in holding orderly elections. Michigan has a large and decentralized election system. It has already completed the key training events for the November election and the 30,000 poll workers needed to run it. In that training, the Secretary instructed poll workers to enforce the photography ban in order to maintain order in the polling place and to protect the secrecy of the ballot. The Secretary has also distributed a “how to” manual for poll workers that includes the photography ban. Changing the policy now is a recipe for election-day confusion for voters and poll workers alike.

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841 F.3d 396, 2016 FED App. 0266P, 2016 U.S. App. LEXIS 19494, 2016 WL 6311623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joel-crookston-v-ruth-johnson-ca6-2016.