Joseph Kishore and Norissa Santa Cruz v. Gretchen Whitmer, Governor of Michigan et al.
U.S. Court for the Eastern District of Michigan - Filed (June 18, 2020) | Opinion (July 18, 2020)
U.S. Court of Appeals for the Sixth Circuit - Appeal Filed (July 23, 2020)

related:
Eric Esshaki et. al. v. Gretchen Whitmer, Governor of Michigan et. al.
Preliminary Injunction: U.S. Court for the Eastern District of Michigan (April 20, 2020)
Ruling: U.S. Court of Appeals for the Sixth Circuit (May 5, 2020)


Socialist Equality Party
By Kevin Reed
25 July 2020

SEP files appeal to Federal Sixth Circuit Court in Michigan ballot access case

On Thursday, the Socialist Equality Party (SEP) appealed the July 8 decision of Judge Sean F. Cox of the Eastern District Court of Michigan denying the party’s lawsuit against the state’s ballot access requirements during the coronavirus pandemic.

In their comprehensive 64-page opening brief to the US Court of Appeals for the Sixth Circuit, candidates Joseph Kishore for US President and Norissa Santa Cruz for US Vice President put forward a powerful argument that Cox’s ruling is wrong and should be overturned. Cox agreed with Democratic Governor Gretchen Whitmer’s argument that the SEP should have collected signatures on nominating petitions throughout the pandemic in Michigan.

There are thirteen circuit courts in the US. The Sixth Circuit Court of Appeals has 28 judges and covers the states of Michigan, Ohio, Kentucky and Tennessee. The Sixth Circuit Court sits in Cincinnati, Ohio.

The SEP candidates originally filed their lawsuit in federal court in Detroit on June 19 against Governor Whitmer, Secretary of State Jocelyn Benson and Director of the Michigan Bureau of Elections Jonathan Brater, calling the physical signature-gathering requirement impossible. The lawsuit alleged the requirement left “socialist voters like Plaintiffs and their supporters, who for reasons of political principle are unable to vote for non-socialist candidates, unable to vote at all.”

The defendants responded to the lawsuit on June 29 and argued that the SEP and it supporters should have been collecting signatures during the pandemic as well as during the state of emergency declaration and “stay-at-home” orders by Governor Whitmer that began on March 10, 2020. Ten days later, the Republican-appointed Judge Cox issued his ruling on July 8, essentially endorsing the arguments made by the Democratic Party defendants.

In the introduction to the appeal brief, the SEP candidates state that any attempt to collect signatures of voters under the unique circumstances of the pandemic “would have constituted a grave risk to the health and lives of their supporters” and that “Michigan’s ballot access laws operate as an unconstitutional restriction on their core democratic rights and an effective bar to their participation in the November elections.”

Asserting the core democratic rights at stake in the case, the appeal states, “Unless this Court intervenes, these core democratic and constitutional rights of Kishore and Santa Cruz and their supporters will be violated, as their campaign will be effectively excluded from the ballot in a critical election year.”

The introduction further states that Judge Cox’s decision “effectively ignores this requirement by glossing over the dangers posed by the COVID-19 pandemic, thereby downplaying the risk to Kishore and Santa Cruz and their supporters.” The significant health risks of petitioning during the pandemic are then elaborated in a description of the devastating impact of the coronavirus on the Michigan population with 6,300 deaths and over 75,000 positive cases since the crisis began.

The appeal brief states that Michigan’s ballot access requirement combined with the pandemic and the ongoing stay-at-home order “severely burden the Appellants’ First and Fourteenth Amendment rights as candidates and as voters.” The SEP candidates state that the appeals court should impose an injunction on the Michigan government officials and Kishore and Santa Cruz should be placed on the ballot or provided “with a procedure for gaining access that does not involve a risk of death or serious illness.”

The SEP brief presents a detailed review of the election campaign from the initial announcement of Kishore and Santa Cruz as the party’s candidates on January 21, 2020 through to the cancellation of all campaign activities in early March due to the pandemic. The SEP “decided to suspend all subsequent public events, including future plans for ballot gathering initiatives, in order to protect volunteers, staff and the public at large from spreading the coronavirus,” the brief states.

The appeal quotes several statements by Governor Whitmer that directly contradict the position being argued in court that the SEP should be collecting signatures to be placed on the ballot. One of these was a press conference on July 9, where the Governor focused on the increasing spread of the virus in Michigan during June and July, saying, “If we let our guard down, we could see a rapid increase in cases and deaths here in Michigan. … We’ve got to all work together to protect one another.”

The appeal brief also reviews in detail the history of the SEP (and its predecessor the Workers League) in Michigan, including the relocation of the party’s center to Southeast Michigan in 1978, the large readership in Michigan of the World Socialist Web Site, the numerous elections in which the organization has achieved statewide ballot access going back to the 1984 presidential elections and many other campaigns and initiatives of the party in Detroit and surrounding areas over the past three decades.

The candidates noted the growing support for the SEP over the years and argue that, had they “been able to run a ballot drive statewide this year, the total number of required signatures was certainly well within their reach, especially in light of a rapid leftward shift in the population and the growing popularity of socialism.”

Specifically addressing Judge Cox’s ruling, the SEP appeal points to the significant fact that the Eastern District Court of Michigan took no interest and failed to even mention either “the virus’ death toll or to the rapid spread of the disease throughout the state,” or the objective risk of death to the SEP members, “their supporters, and the general public, referencing only ‘health’ concerns.”
In one particularly notable section, in exposing the absurdity of the state’s arguments for petitioning during the pandemic, the brief describes a hypothetical interaction between an SEP campaigner collecting signatures and a Michigan voter. After the campaigner asks for a signature explaining that Joseph Kishore is running for president to warn the working class about the dangers of the coronavirus pandemic, the voter asks, “If you care so much about my safety, why are you standing so close to me and spreading your droplets all over me?”

After the campaigner explains that the SEP has to gather 12,000 signatures to get Kishore on the ballot, the Michigan voter says, “So you are willing to sacrifice my health and the health of tens of thousands of others just to get your own candidate on the ballot? I will not vote for someone so selfish. If you think socialists are better than the two parties, why don’t I see any Democrat or Republican candidate violating social distancing by shoving a clipboard in my face?”

In summarizing its argument before the Sixth Circuit Court of Appeals, the brief states that the review of the past six months shows that the SEP was “forced to abstain from signature gathering because doing so would have caused death and alienated their supporters. The U.S. Constitution protects them from ‘deciding’ between exercising their rights and saving their lives and the lives of their supporters and voters.”

A major argument made in both recent rulings against the party’s lawsuits in Michigan and California is that by refusing to petition during the pandemic, the SEP lacked “diligence.” This argument is dealt with in some length in the appeals brief by turning the whole issue around and stating, “no reasonably diligent candidates can or would comply with Michigan’s requirements under conditions of the coronavirus pandemic” and that the SEP, in fact, exercised “reasonable diligence,” by “conscientiously abstaining from signature gathering during the pandemic.”

In summing up, the appeal returns to the topic of “diligence,” stating that the Michigan government officials are telling the SEP “that the only way they can exercise their fundamental rights is to violate the law, violate their principles and risk their lives and the lives of their potential supporters in the public.” However, the candidates state that there is nothing reasonable about the state’s definition of “reasonable diligence,” “especially when the Democratic and Republican parties are allowed to hold their nominating conventions virtually in August, without any health risk to their candidates or supporters.”

With this argument, the SEP is making clear that the ruling against the Michigan ballot access lawsuit is fundamentally to keep socialists and working-class candidates off the ballot for President of the United States and protect the two-party monopoly of the capitalist class under conditions of rapidly growing interest in and support for socialism.

By Socialist Equality Party (US)
19 June 2020

SEP candidates Kishore and Santa Cruz file federal lawsuit challenging ballot access laws in Michigan

Yesterday, the Socialist Equality Party filed a federal lawsuit challenging the state of Michigan’s decision to enforce its 30,000-signature requirement for independent presidential candidates to gain ballot access despite the ongoing coronavirus pandemic, which makes physical signature-gathering impossible.

SEP presidential candidate Joseph Kishore and vice presidential candidate Norissa Santa Cruz are the plaintiffs, and Michigan Democratic Governor Gretchen Whitmer and other state officials are the defendants.

The complaint, filed in the US District Court for the Eastern District of Michigan, explains that enforcing these rules during the coronavirus “will leave socialist voters like Plaintiffs and their supporters, who for reasons of political principle are unable to vote for non-socialist candidates, unable to vote at all. This conduct subverts the election process, constitutes voter suppression, and arbitrarily restricts the rights of socialists to run in elections and vote for candidates that share their views.”

Socialist Equality Party US presidential candidate sues Michigan over anti-democratic ballot laws
The complaint explains that broader democratic questions are involved in the lawsuit:

“Socialism is rapidly gaining popularity in the United States. A Gallup poll released in 2018 found that fewer than half of young people aged 18-29 have a positive view of capitalism, while more than half have a positive view of socialism. As a lawsuit to defend and uphold the rights of the substantial numbers of voters who wish to associate themselves with socialist campaigns and vote for socialist candidates in the upcoming elections, this action is in the public interest.”

Democrat Governor Gretchen Whitmer issued an executive order on March 23, 2020, requiring all individuals to “stay at home or at their place of residence,” in effect banning “non-essential” work, business, and public gatherings and requiring individuals to not come between six feet of each other outside of their homes. Under these conditions, petition-gathering would endanger campaign volunteers and the general public.

The lawsuit notes how the ballot access requirements and their enforcement are inconsistent with other actions by the Secretary of State, which conducted local elections last month through mail ballots, and not in person.

In a statement delivered at the district court in downtown Detroit on Thursday, Kishore said that securing the democratic right of workers to vote for the SEP candidates “is all the more critical under conditions of growing mass social unrest in response to the ruling class’s homicidal policy in relation to the pandemic, including the back-to-work orders, which are being implemented by Governor Whitmer here in Michigan.”

Kishore added: “The enormous social anger of workers and young people throughout the world has found expression in recent weeks in the explosion of protests over police violence and the police murder of George Floyd. But this anger runs far deeper. Workers and young people are moving to the left, they are interested in socialism, and it is their democratic right... to be able to vote for the Socialist Equality Party candidates in these elections.”

Attorney Eric Lee, who filed the suit and represents Kishore and Santa Cruz, told the World Socialist Web Site, “The state of Michigan is telling Joseph Kishore that he can only exercise his constitutional rights by risking his life and the lives of his campaign volunteers. A growing number of socialist voters in Michigan do not want to vote for Biden, Trump or any other capitalist candidate, and the U.S. Constitution affords them the right to cast a meaningful vote.”

A number of workers and supporters submitted affidavits explaining that in their view their right to vote is eliminated by Michigan’s decision to enforce the physical petition requirement.
Florlisa Stebbins, a Flint resident whose water was poisoned in the Flint water crisis and a prominent community activist, wrote in her statement to the court:

“As far as I am concerned, the two parties are one and the same. I do not trust either of them. In Flint, they pretty much tried to kill us. They destroyed our homes and our community and we will feel this for generations. The rich waged a war on the working class here and if we do not have a way to challenge that, they will get away with it. How can we change the conditions here if we are not allowed to vote for the people we want to vote for? If Kishore and Santa Cruz are on the ballot I will vote for them. I am not voting for any of the other candidates and I want my voice to count.”

Henrietta Freeman, a Detroit public school teacher with over 16 years’ experience, wrote, “Michigan is a poor state. The level of inequality present in Michigan is the product of years of rule by both the Democratic and Republican parties. I do not support Republicans, but in Detroit we have always had Democrats in power and nothing has changed.

“As a Detroit public school teacher, I have experienced this first hand. I graduated from the school I teach at. It used to be a full-service high school, with a great library, clean classrooms and arts and music programs. We do not have that anymore. Teacher pay is very poor, the books are old, the buildings are dilapidated, unsafe and unsanitary. There is hardly any art and music. They may make further cuts to our budget. Joe Kishore and Norissa Santa Cruz are the only candidates who have a program that I consider sufficient to defend public education and to oppose education cuts.”

Greg Near, a retired Michigan Opera Theatre Orchestra musician, wrote to the court: “If Joe Kishore and Norissa Santa Cruz are on the ballot, as of right now I would vote for them. There is very little choice in terms of who is on the ballot. I do not see anything I like in either of the two main candidates, Joe Biden and Donald Trump. Other parties like the Greens and Libertarians do not interest me as much as the Socialist Equality Party in this election.

“I met the Socialist Equality Party in 2010 when the Detroit Symphony Orchestra (DSO) was on strike and I was supporting the musicians. The Socialist Equality Party was very supportive of the right to culture and defended the musicians when the media was biased against us.”

The Socialist Equality Party calls for readers and supporters to support the Kishore/Santa Cruz campaign by signing up for our newsletter, by joining the Socialist Equality Party, or, for US citizens, donating to support the campaign. Illinois residents should sign this petition to put the SEP on the ballot in Illinois.