Bogaert v. Land

Background

Land's office had previously determined that Bogaert's petition drive to place a question on the August 5, 2008 ballot to remove Dillon from office had fallen short by 776 signatures. 2,053 signatures that Land determined to be invalid were said to be invalid solely on the basis of the circulator's out-of-district status.

The lawsuit says that MCL 198.957 is unconstitutional and therefore should be disregarded as a proper basis for invalidating these signatures. If a federal judge agrees, the signatures could be reinstated and a recall election could be called.

Since it is too late for the recall question to go on the August ballot, the petition filed by Bogaert requests that the recall action be placed on the November 4, 2008 ballot. Dillon's name is expected to be on the ballot as he seeks his final term in office in the Michigan state legislature. If this lawsuit succeeds, Dillon's name could be on the November ballot twice--once as a regular candidate and once as the subject of a recall election. In that case, if Dillon wins his re-election, he could also simultaneously be recalled from the term he is currently serving, which ends in January 2009.

Procedural posture and actions

In the lawsuit, Bogaert asked for emergency consideration of a request for a preliminary injunction relative to the signatures filed in the Andy Dillon recall.

Judge rules Michigan restrictions unconstitutional

On August 27, 2008, United States District Judge Robert Holmes Bell issued a preliminary injunction ordering Michigan Secretary of State Terri Lynn Land to re-examine the signatures without reference to statutory requirements prohibiting non-residents of Dillon's district from circulating petitions; and further ordered that if sufficient signatures are found, then Land must place the recall against Representative Dillon on the November 4, 2008 general election ballot. In the ruling, Judge Bell agreed with recall supporters that part of Michigan's law governing recall signature gathering is unconstitutional because it infringes on political speech rights protected in the First Amendment. Bell ruled that signatures from voters inside Dillon's district should be counted even if they were collected by petition circulators who lived outside the district or weren't registered to vote. Under Michigan law, those signatures aren't considered valid.

"The circulation of recall petitions is core political speech," Bell wrote, saying that recall organizers' First Amendment rights were "severely burdened" by state law.

Bell said the state and Dillon did not show how requiring recall petition circulators to be registered voters and district residents improves the integrity of recall petitions.

Dillon appeal for re-hearing rejected

Dillon quickly appealed the court order. The grounds for his appeal is that the order did not leave him enough time before the September 8 deadline for printing ballots to challenge the signatures as fraudulent. Judge Bell denied Dillon's request for a re-hearing in his court, saying, "Representative Dillon was well aware of the tight schedule for challenging the recall petitions. Michigan law does not guarantee that state representatives will be given a second opportunity to challenge recall petitions in the event some portion of the state law is deemed to be unconstitutional. There was no impediment to his raising all of his challenges to the recall petitions by the June 2, 2008, deadline for submitting challenges. Representative Dillon effectively waived his right to challenge the authenticity of the signatures on the petitions circulated by non-residents and/or non-registered voters by failing to timely raise those challenges."

Michigan is in the Sixth Circuit, which is where Dillon would therefore turn to file any additional appeals.