Michigan election officials are likely to keep Congressman John Conyers off the August 5 primary ballot, unless he files and wins a lawsuit. See this story, which explains that Michigan law requires circulators for primary candidates to be registered voters. It appears some of Conyers’ circulators weren’t registered voters when they circulated his petition. He needed 1,000 signatures, and he has fewer than 1,000 if the petitions circulated by the apparently unregistered voters are excluded.

As the story says, in 1999 the U.S. Supreme Court ruled in Buckley v American Constitutional Law Foundation that states cannot require petitioners to be registered voters. Although that case involved initiative petitions, lower courts since 1999 have unanimously ruled that the principle applies to all types of petitions.

In 2009, a U.S. District Court in Michigan ruled, “Overall, the Court finds that the distinctions between the various kinds of petition circulators are not of great significance to the analysis of the burdens posed by registration and residency requirements.” That case struck down a requirement that recall petition circulators must be registered voters. Ironically, in that case, the state of Michigan argued that while a residency requirement and a registration requirement for circulators of candidate petitions is a severe burden, the requirement as applied to recall petitioners is not severe. The Court rejected the state’s argument. That decision is Bogaert v Land, western district, 1:08-cv-687, issued December 17, 2009.

So far, Michigan officials are saying that whereas residency requirements for circulators of independent candidate petitions are unconstitutional, residency requirements for circulators of primary candidates are constitutional. There is no case law to support that conclusion. This year, courts in Pennsylvania and New Jersey have ruled that the principle of Buckley v ACLF applies just as much to primary petitions as to other petitions. Those cases are Villa v Aichele, eastern district of Pennsylvania, 13-6374; and Empower our Neighborhoods v Guadagno, New Jersey Superior Court, Mercer County L-3148-11. Also, in 2000, the Second Circuit struck down a New York residency requirement for circulators involving primary petitions (Lerman v Board of Elections, 232 F 3d 135).

It is true that courts have upheld requirements that primary petition circulators must be members of the same party, but that is not an issue in Michigan. Conyers’ circulators are Democrats, and furthermore Michigan doesn’t have registration by party and there is no formal way for the state to know who is a member of any particular party. Michigan voters choose a primary ballot in the secrecy of the voting booth, except for presidential primaries. Thanks to Thomas Jones for the link. UPDATE: see this story, which says a lawsuit is already pending, although it was filed by Robert Davis, rather than Conyers himself. Conyers may intervene in the case.