Filed Date: May 28, 2020
Closed Date: Aug. 27, 2021
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This series of cases was about whether the Michigan Secretary of State had the authority to distribute unsolicited absentee ballot applications to all Michigan voters in the midst of the COVID-19 pandemic. On May 28, 2020, political activist Robert Davis, represented by private counsel, initiated this series of lawsuits against Michigan Secretary of State Jocelyn Benson, alleging that her decision to mail absentee ballot applications for the 2020 August and November elections to all registered voters in the State exceeded her statutory authority.
State Court Complaint
Davis’ initial May complaint (docket 20-000099-MM) was made in the Michigan Court of Claims (the state’s special court for filing claims against the state of Michigan) and assigned to Judge Cynthia Stephens.
The complaint alleged that the unsolicited mailing of absentee ballots violated the purity of elections and separation of powers clauses of the Michigan Constitution of 1963, and it sought a declaratory judgment that this was illegal and an injunction against sending further absentee ballots. On the same day he filed his complaint, May 28, Davis moved for an emergency declarative judgment. The case was related to and ultimately consolidated with Black v. Benson (docket 20-000091-MM) and Cooper-Keel v. Benson (20-000096-MZ). Of note, the plaintiffs in the related cases moved for preliminary injunctions, while Davis did not.
Between June 12 and June 16, 2020, nonprofit organizations filed amicus briefs in these cases. The Brennan Center for Justice and the organization “Count MI Vote” filed briefs supporting the defendant in the Davis case, while the League of Women Voters of Michigan and American Civil Liberties Union of Michigan filed briefs in the Black case.
On June 16, 2020, the court heard oral arguments on the preliminary injunction, and on June 18 the court denied the injunction. Judge Stephens held that the plaintiffs did not show they would suffer irreparable harm absent an injunction because simply alleging that a party is breaking the law is not sufficiently particularized. Failing the irreparable harm prong was sufficient for the ruling, but Judge Stephens also noted the plaintiffs also did not show the requisite likelihood for success on the merits of their cases.
On June 26, 2020, Secretary Benson moved for summary disposition (docketed in Black v. Benson), which the court granted with respect to all three consolidated cases on August 25, 2020. Judge Stephens held that Secretary Benson had discretionary authority over state elections, that the plaintiffs’ statutory authority did not preclude the sending of ballot applications, and that the Michigan constitutional amendment protecting the right to vote by absentee ballot without providing a reason prevented the court from interpreting such a limitation into the distribution of absentee ballot applications.
Plaintiff Davis appealed the ruling on August 28, 2020, which the Michigan Court of Appeals affirmed on September 16, 2020, largely adopting the Court of Claims’ reasoning above. On December 28, 2020, the Michigan Supreme Court denied plaintiff Davis’ application for leave to appeal, leaving in place the ruling of the Court of Claims.
First Federal Court Complaint
While his state court case was ongoing, plaintiff Davis filed a similar complaint in the U.S. District Court for the Western District of Michigan Southern Division on August 14, 2020. He alleged under § 1983 that his procedural and substantive due process rights were violated when Secretary Benson sent the unsolicited absentee ballot applications. The complaint makes allegations similar to the state court complaint, but it adds that plaintiff Davis did not vote by absentee ballot in the August 4, 2020 primary election because he was unable to request an absentee ballot application and because he feared that a vote cast with the unsolicited application would be unlawful. Davis sought compensatory and punitive damages as well as declaratory and injunctive relief. The case was assigned to District Judge Janet T. Neff.
Davis amended his complaint on August 18, 2020 and again on October 7. The amendments add a private political consultant as a named defendant and introduce a number of causes of action stemming from seemingly personal disputes unrelated to the challenged absentee application mailing—in fact, the claims pertaining to the absentee ballot mailing were removed from the complaint altogether. The court dismissed the complaint on March 11, 2022 after motions from the defendants.
Second Federal Court Complaint
After amending his earlier federal complaint to remove the absentee application claim, Davis filed a new complaint in the U.S. District Court for the Western District of Michigan Southern Division containing the claims eliminated from the previous complaint. This iteration of the complaint included several new allegations and added Detroit City Clerk Janice Winfrey and the Detroit Department of Elections as defendants along with Secretary Benson. The case was assigned to District Judge Paul L. Maloney
First, the complaint alleged that the mailing violated Davis’ constitutional rights under an equal protection theory, alleging that, for the November 2020 general election, Secretary Benson instructed the Detroit City Clerk to mail absentee ballots to residents of the City of Detroit but did not do so for residents of Davis’ city. Next, it alleged that the mailing would dilute Davis’ vote if voters who received an unsolicited application were counted. Finally, the complaint asked the court under state law to prevent the counting of votes of people who received unsolicited applications, and to eliminate a population requirement from a recently passed state law allowing city and township clerks with populations of 25,000 residents or more to begin processing returned absentee ballots a day before the November 3, 2020 general election.
On October 28, 2020, Davis filed an emergency motion for partial summary judgment to prevent the enactment of the law allowing clerks to process ballots early, asking the court to address the merits of his claim “no later than October 28, 2020. The next day, he moved for a preliminary injunction to the same effect. The court denied the motions on October 30, 2020. Judge Maloney found that ruling on the Davis’ Rule 56 motion would have been improper at that juncture because it would deny the defendants the opportunity to respond or obtain discovery. He also dismissed Davis’ state claims, due to “concerns” about standing and because the state claim to prevent the counting of ballots did not arise out of the same facts as the absentee mailing. 2020 WL 6605983. Judge Maloney also denied the preliminary injunction motion on procedural grounds, but also found that Davis didn’t demonstrate a likelihood of success on the merits because he provided no support for his allegations and the only difference between this allegation and the previously adjudicated state court resolution was that it concerned the general election rather than the primary. 2020 WL 6605984.
Defendants Winfrey and the Department of Elections moved to dismiss for failure to state a claim on November 18, 2020. They argued first that Davis did in fact receive an absentee ballot application for the general election and that his complaint is merely that it came from the Michigan Department of Elections whereas Detroit residents received their applications from the Detroit City Clerk. They pointed out that Davis’ claim regarding vote dilution didn’t allege any violation of federal or state law and that his preferred candidate would have lost even if he received the relief he sought. Finally, they argued that his claim seeking to prevent the counting of ballots was moot.
On December 9, 2020, Davis amended his complaint, dropping the Detroit Department of Elections as a defendant, adding Highland Park City Clerk Brenda Green as a defendant, and adding several new claims. First, the complaint alleged that Secretary Benson’s failure to provide funds to all local clerks to pay for absentee application mailings violated Davis’ constitutional equal protection rights. Second, it alleged that Secretary Benson’s denial of Davis’ request for post-election audits violated Davis’ procedural due process rights. Third, it alleged that the audit denial was an equal protection violation because others who were similarly situated were allegedly treated differently. Fourth, it alleged another equal protection violation because Secretary Benson declined to refer a prosecutor for prosecution upon Davis’ request. Fifth, it alleged that defendant Winfrey violated Davis’ procedural due process rights by refusing to allow him to observe the tallying of votes after polls closed. Sixth and last was a similar allegation to the fifth count, this time against defendant Green.
With her motion to dismiss mooted by Davis’ entirely new amended complaint (officially mooted by the court on December 18), defendant Winfrey made a new motion to dismiss the fifth count of Davis’ complaint on December 16, 2020. She argued that Davis’ complaint stated a claim for violation of a state election law but not a procedural due process violation, which would require an allegation that he was denied the opportunity to for redress of those state law violations.
In 2021, defendants Green and Benson filed motions to dismiss on January 5 and January 7 respectively. On February 23, 2021, Davis filed a stipulation, dropping his claims against Secretary Benson, which left claim five against Winfrey and claim six against Green, each for refusing to let him observe vote tallying. On March 4, Davis voluntarily dismissed his claim against Green, leaving only his claim against Winfrey. With the claims against them dropped, Judge Maloney dismissed Green and Benson’s motions to dismiss as moot. Finally, on August 27, 2021, the court granted defendant Winfrey’s December 16, 2020 motion to dismiss, holding that Davis failed to state a claim when he alleged a procedural due process violation for an act more properly redressed by state remedies.
With all claims resolved and no appeal, the case is closed.
Summary Authors
Terry Howard (1/1/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/18573050/parties/davis-v-benson/
Green, Phillip J. (Michigan)
Davis, Robert C. (Michigan)
Asher, Kyle M. (Michigan)
Gordon, Gary P. (Michigan)
Grill, Erik A. (Michigan)
See docket on RECAP: https://www.courtlistener.com/docket/18573050/davis-v-benson/
Last updated April 28, 2025, 12:01 p.m.
State / Territory: Michigan
Case Type(s):
Special Collection(s):
Healthy Elections COVID litigation tracker
Key Dates
Filing Date: May 28, 2020
Closing Date: Aug. 27, 2021
Case Ongoing: No
Plaintiffs
Plaintiff Description:
A private political activist.
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Secretary of State Jocelyn Benson (Lansing, Ingham), State
Defendant Type(s):
Case Details
Causes of Action:
Constitutional Clause(s):
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Content of Injunction:
Issues
Voting: