NOT RECOMMENDED FOR PUBLICATION
                                File Name: 24a0397n.06

                                            No. 24-1799
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                              Sep 27, 2024
                                FOR THE SIXTH CIRCUIT                          KELLY L. STEPHENS, Clerk


                                                    )
ROBERT F. KENNEDY, JR.,
                                                    )
        Plaintiff-Appellant,                        )        ON APPEAL FROM THE
                                                    )        UNITED STATES DISTRICT
v.                                                  )        COURT FOR THE EASTERN
                                                    )        DISTRICT OF MICHIGAN
JOCELYN BENSON, in her official capacity            )
as Michigan Secretary of State,                     )

OPINION

        Defendant-Appellee.                         )
                                                    )

               Before: CLAY, McKEAGUE, and BLOOMEKATZ, Circuit Judges

    CLAY, J., delivered the opinion of the court in which BLOOMEKATZ, J., joined.
McKEAGUE, J. (pp. 12–21), delivered a separate dissenting opinion.

       CLAY, Circuit Judge. Plaintiff Robert F. Kennedy Jr. appeals the district court’s denial

of his motion for preliminary injunction. Plaintiff alleges that Defendant Jocelyn Benson, in her

official capacity as Michigan Secretary of State, violated his constitutional rights under Article II,

the First Amendment, and the Fourteenth Amendment of the United States Constitution. Plaintiff

was formerly a candidate for President of the United States and attempted to withdraw his name

from the Michigan ballot on August 23, 2024. After the Michigan Secretary of State refused to

permit Plaintiff to withdraw his name from the ballot, he filed suit first in state court and then in

the United States District Court. For the reasons that follow, we AFFIRM the district court’s

denial of Plaintiff’s motion for preliminary injunction.




                                                 -1-
No. 24-1799, Kennedy v. Benson


                                       I.   BACKGROUND

                                       A. Factual Background

       Over the last year-and-a-half, Plaintiff has been a candidate for President of the United

States. After initially running for the Democratic Party’s nomination, Plaintiff ran as a third-party

candidate for the Natural Law Party and undertook a prolonged effort to gain ballot access in each

of the nation’s states. See Rebecca Davis O’Brien, Surprise Tactics and Legal Threats: Inside

R.F.K. Jr.’s Ballot Access Fight, N.Y. Times, Apr. 29, 2024. On April 17, 2024, Plaintiff received

the Natural Law Party’s presidential nomination in Michigan, thus earning a place on Michigan’s

general election ballot.

       On August 23, 2024, Plaintiff withdrew from the presidential race and notified the

Michigan Bureau of Elections of his decision. Three days later, Defendant Benson rejected

Plaintiff’s withdrawal notice, citing 

.686a(2). Plaintiff renewed his

withdrawal notice the following day, but Defendant again rejected the notice, citing 

.686a(4).

       After receiving his second rejection, Plaintiff filed suit on August 30, 2024, in the state

Court of Claims. Plaintiff alleged that Defendant had violated various state election laws and the

free speech protections of the Michigan Constitution by failing to remove Plaintiff from the ballot.

He sought mandamus, injunctive, and declaratory relief. The state court dismissed the complaint.

On September 4, 2024, Plaintiff appealed to the Michigan Court of Appeals. Two days later, the

Court of Appeals granted Plaintiff’s appeal and remanded to the Court of Claims, which granted

mandamus and ordered Defendant to remove Plaintiff’s name from the ballot. That same day,

Defendant appealed to the Michigan Supreme Court, and on September 9, 2024, the court granted

Defendant’s appeal and affirmed the Court of Claims’ order.


                                                -2-
No. 24-1799, Kennedy v. Benson


       On September 6, 2024—in between the time of the Court of Appeals’ and the Michigan

Supreme Court’s decisions—Defendant sent the certification of candidates to Michigan’s county

clerks. Per the Court of Appeals’ decision and subsequent order, Defendant’s communication did

not have Plaintiff’s name listed as the candidate for the Natural Law Party, nor did it order that the

ballots be printed. Three days later, after the Michigan Supreme Court’s decision was released,

Defendant updated the names of candidates and included Plaintiff’s name as the presidential

candidate for the Natural Law Party.

                                        B. Procedural History

       After Plaintiff lost his case in state court, he filed suit in the U.S. District Court for the

Eastern District of Michigan.       Plaintiff’s district court complaint alleged three counts of

constitutional violations: (1) a violation of Article II, Section I, arguing “that states may not impose

their stringent ballot access requirements on the national election for President” and that

Defendant’s placement of Plaintiff’s name on the ballot serves “no other possible reason than to

confuse unwitting Michigan voters to vote for a candidate no longer running for office,” Compl.,

R. 1, Page ID #6–11; (2) a Fourteenth Amendment equal protection violation, arguing that the

deadline by which a candidate withdraws gives an “advantage [to] the Democrats and

Republicans” by unfairly preventing third-party candidates from withdrawing after receiving a

party’s nomination, 

 at Page ID #11–15; and (3) a First Amendment compelled speech violation,

arguing that by placing Plaintiff’s name on the ballot, Defendant compels Plaintiff “to convey a

false message to every citizen of Michigan that he is vying for their vote in this state,” 

 at Page

ID #15–19. Plaintiff subsequently filed a motion for a preliminary injunction, requesting that

Defendant remove his name from the ballot.




                                                  -3-
No. 24-1799, Kennedy v. Benson


       The district court denied Plaintiff’s motion for a preliminary injunction. In coming to its

conclusion, the district court found that Plaintiff could not establish a likelihood of success

inasmuch as Plaintiff’s claims were likely barred by res judicata, laches, and the Rooker-Feldman

doctrine. The court also explained that Plaintiff could not establish a likelihood of success on the

merits, as each of the claims failed to present viable constitutional causes of action. Finally, the

court concluded that Plaintiff could show neither irreparable harm nor a sufficient balancing of

harms and public interest. Defendant now appeals the district court’s decision.

                                        II.   DISCUSSION

                                       A. Standard of Review

       In deciding a motion for preliminary injunction, courts consider: “(1) whether the movant

has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable

injury absent the injunction; (3) whether the injunction would cause substantial harm to others;

and (4) whether the public interest would be served by the issuance of an injunction.” Bays v. City

of Fairborn, 

, 818–19 (6th Cir. 2012). “A preliminary injunction is an extraordinary

and drastic remedy,” and should “only be awarded upon a clear showing that the plaintiff is entitled

to such relief.” James B. Oswald Co. v. Neate, 

 (6th Cir. 2024) (first quoting

Munaf v. Geren, 

, 689–90 (2008); then quoting Winter v. Nat. Res. Def. Council, Inc.,

 (2008)). This Circuit reviews preliminary injunction orders “for abuse of discretion,

subjecting factual findings to clear-error review and examining legal conclusions de novo.” Daunt

v. Benson, 

, 406 (6th Cir. 2020) (citation omitted).




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No. 24-1799, Kennedy v. Benson


                                              B. Analysis

        Plaintiff’s appeal fails because he cannot satisfy the first preliminary injunction element,

likelihood of success on the merits, as each of his claims are barred by res judicata. Nor are the

equities in his favor.

        1. Likelihood of Success

        Under the principle of res judicata, if a plaintiff’s claims reach final judgment in one court,

she cannot pursue the same causes of action in another. In other words, “a litigant generally does

not get two bites at the apple.” Talismanic Props., LLC v. City of Tipp City, 

,

131 (6th Cir. 2018). But that’s what Plaintiff is attempting here.

        “Federal courts must give the same preclusive effect to a state-court judgment as that

judgment receives in the rendering state.” Abbott v. Michigan, 

 (6th Cir. 2007)

(citing 

). This Court looks to the state law where “Plaintiff’s prior litigation took

place”—in this case, Michigan, “which employs a ‘broad view of res judicata.’” Buck v. Thomas

M. Cooley L. Sch., 

 (6th Cir. 2010) (quoting In re MCI Telecomms. Compl., 

 (Mich. 1999)). In Michigan, res judicata “bars not only claims already litigated,

but also every claim arising from the same transaction that the parties, exercising reasonable

diligence, could have raised but did not.” Adair v. State, 

 (Mich. 2004).

Michigan’s res judicata law “bars a second action on the same claim if (1) the prior action was

decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter

in the second case was, or could have been, resolved in the first.” Mecosta Cnty. Med. Ctr.

v. Metro. Grp. Prop. & Cas. Ins. Co., 

, 405 (Mich. 2022) (internal quotation marks

and citation omitted).




                                                 -5-
No. 24-1799, Kennedy v. Benson


       Res judicata applies to each of Plaintiff’s claims, so the Michigan Supreme Court’s

judgment precludes Plaintiff’s federal complaint. Regarding the first element of Michigan’s res

judicata standard, the prior action was decided on the merits. The Court of Claims issued an

opinion dismissing the state complaint on the merits, and the Michigan Supreme Court affirmed

that dismissal. The second element is also met, as both Plaintiff and Defendant were parties to the

state action. The primary issue, therefore, centers on the third res judicata element: whether the

claims in the federal complaint were, or could have been, resolved in the state court case.

       Plaintiff could have brought his First Amendment compelled speech claim in the state court

suit. Indeed, his state court complaint listed a compelled speech claim under the Michigan

Constitution, stating that Defendant’s actions compel “Plaintiff to convey a false message to

every citizen of Michigan that he is vying for their vote in this state, when he is not.” State Compl.,

R. 8-9, Page ID #188. Plaintiff evidently believed Defendant’s conduct implicated his speech

interests prior to filing suit in state court. Perplexingly, Plaintiff argues that he “did not raise any

compelled speech claim in his state court action,” though the record shows the opposite.

Appellant’s Br., ECF No. 6, 10. Even assuming he means he did not raise a federal compelled

speech claim there, he does not argue that he was barred from doing so. This cause of action is

barred by res judicata.

       Plaintiff did not raise an Article II1 or equal protection claim in state court. Nevertheless,

he could have. See Adair, 

. The claims in this case clearly arise from the same

transaction as the claims in the state court case: in both cases, Plaintiff alleged that Michigan

unfairly placed his name on the ballot and he sought to have his name removed. The Article II



       1
         Article II, Section 1 of the U.S. Constitution outlines the manner in which presidential
elections must be conducted.

                                                  -6-
No. 24-1799, Kennedy v. Benson


count argues that the presence of Plaintiff’s name on the ballot functions to confuse Michigan

voters and “waste their votes,” while the withdrawal deadlines are unreasonable and undermine

the electoral process. Compl., R. 1, Page ID #6–11. Those precise arguments could have easily

been made in state court; in fact, Plaintiff employs similar language in parts of his state

court complaint, such as when he argues that votes for him are “wasted and in vain.” State Compl.,

R. 8-9, Page ID #188. With respect to the equal protection count, Plaintiff argues that the state

withdrawal deadlines unfairly benefit the major political parties, as minor party candidates are only

permitted to withdraw prior to accepting a party’s nomination. Before filing in state court, Plaintiff

knew Defendant rejected his request to withdraw from the ballot, implicating the same harms he

raises here. And like his First Amendment claim, he does not argue that he was barred from

bringing these constitutional claims in state court either.

       Plaintiff’s arguments to the contrary are unavailing.         Plaintiff argues that prior to

September 9, 2024—the date on which Michigan recertified the names on its ballot and listed

Plaintiff as a candidate—there was no Article II, equal protection, or First Amendment violation

for him to complain of. Plaintiff explains that, prior to September 9, his name had not been placed

on the ballot, so no constitutional violation had yet accrued. But by this logic, ballot-related

constitutional claims are only ripe when ballots are finalized. That, however, is not an accurate

rendering of the law. This Circuit has previously considered constitutional claims regarding a

candidate’s name on an election ballot where the claim was brought before ballots had been

finalized. See, e.g., Rosen v. Brown, 

, 173–74 (6th Cir. 1992) (addressing a challenge

to the Ohio Secretary of State’s decision, prior to ballots being finalized or printed, not to place a

political party indicator next to a candidate’s name on the ballot). Indeed, here, the alleged

constitutional violations were ripe well before September 9, 2024. Plaintiff’s constitutional claims


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No. 24-1799, Kennedy v. Benson


became ripe in August, when Defendant declined to accept Plaintiff’s withdrawal notice. It was

at that point that Plaintiff became “threatened with ‘imminent’ injury in fact”—he became aware

of Defendant’s decision that his name should remain on the Michigan ballot. Carman v. Yellen,

 (6th Cir. 2024) (quoting MedImmune, Inc. v. Genentech, Inc., 

,

128 n.8 (2007)). Plaintiff, who filed his state complaint after Defendant’s denial of his request to

be removed from the ballot, thus had ample opportunity to make his constitutional claims in state

court.

         Plaintiff next argues that res judicata does not apply to his constitutional claims because,

until the resolution of his state court action, the proper interpretation and application of the relevant

Michigan state election law, Mich. Comp. Law § 168.686a, was “in flux.” Appellant’s Br., ECF

No. 6, 8. On Plaintiff’s telling, his claims did not accrue until the Michigan Supreme Court

weighed in on the application of Michigan state election law and, accordingly, settled the relevant

“factual and legal circumstances.” But the notion that res judicata does not apply where the

relevant legal question was “in flux” during the pendency of the first litigation would upend

the doctrine. Res judicata “ensures the finality of decisions.” Brown v. Felsen, 

 (1979). If a litigant could avoid res judicata and challenge a judicial decision in a subsequent

litigation purely because the law was “in flux” during the first litigation, judicial decisions would

seldom be final.

         In support of his argument that res judicata does not apply, Plaintiff relies on this Court’s

decision in Rawe v. Liberty Mutual Fire Insurance Co., 

 (6th Cir. 2006).

Plaintiff’s own case cuts against him. In Rawe, after being injured in a car accident, a plaintiff

filed suit, seeking to recover under two insurance policies. 

. The plaintiff’s first lawsuit

resolved when she accepted a settlement offer. 

. But an insurance company then refused


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No. 24-1799, Kennedy v. Benson


to pay, so the plaintiff filed suit again, arguing that the insurance company had engaged in bad

faith during the first lawsuit. 

 On appeal, this Court held that although the plaintiff now sought

to recover under new theories of relief, several of her claims in the second lawsuit were barred by

res judicata. We explained, “the fact that” the plaintiff “now asserts alternative theories of

recovery . . . does not allow [her] to avoid claim preclusion, when those other theories could have

been asserted” in her first legal action. 

 (citation omitted). The plaintiff could only seek

to recover based on facts that had “not yet occurred” when she filed her first lawsuit. 

 Plaintiff’s

claims are barred for the same reason; Plaintiff points only to new legal theories, not to a change

of facts that occurred after he filed his first lawsuit.

        At bottom, Plaintiff’s current lawsuit is a re-run of his first. When Plaintiff filed his state

court lawsuit in August, he sought to challenge the Defendant’s decision—based on Defendant’s

interpretation of 

.686a—that he should remain listed as a candidate on

Michigan’s ballot. In this lawsuit, Plaintiff continues to seek to have his name removed from the

ballot. The fact that Plaintiff has now identified new legal theories, or that the Michigan Supreme

Court has now shed more light on the application of 

.686a, does not

somehow allow Plaintiff a second bite at the apple.

        Plaintiff’s claims may also be precluded by the Rooker-Feldman doctrine, which bars lower

federal courts from reviewing cases that have been litigated and decided in state court. See RLR

Invs., LLC v. City of Pigeon Forge, 

 (6th Cir. 2021). Yet considering that we

dismiss this case on res judicata grounds, we do not find it necessary to reach the issue of whether

Rooker-Feldman applies. See Arizona v. Biden, 

 (6th Cir. 2022) (considering

whether the plaintiffs were likely to succeed on the merits of their claim when their standing was

in doubt).


                                                   -9-
No. 24-1799, Kennedy v. 

. Other Factors

       We also balance whether an injunction would protect Plaintiff from “irreparable injury,”

cause substantial harm to others, and serve the public interest. Bays, 668 F.3d at 818–19. Here,

each factor cuts against Plaintiff.

       First, consider Plaintiff’s theory of injury. He argues that “once the ballots are printed”

with his name on them, he will inevitably suffer an “injury to reputation,” and his supporters will

“be left confused and angry for casting an invalid vote” for him. But Plaintiff has not shown that

removing his name from the ballot would prevent him from losing face in the eyes of his

supporters. In another court, Plaintiff’s campaign committee has asked to be kept on the ballot in

New York, claiming irreparable injury if he’s taken off. See Kennedy v. Berger, No. 24-2385,

 (2d Cir. Sept. 18, 2024); Application for Emergency Injunction at 1–2, Kennedy

v. Berger, No. 24A285 (U.S. Sept. 20, 2024). It is hard to imagine how excluding Plaintiff from

the ballot could protect him from irreparable reputational damage in one state but cause the same

damage in another. His arguments on irreparable harm are unpersuasive.

         Next, consider the effects of an injunction on others. The Chair of the Natural Law Party,

for which Plaintiff served as the Presidential nominee, asked the Michigan Board of Elections to

prevent Plaintiff from withdrawing his name. In the Chair’s words, “every election cycle is a

challenge” for minor parties, and removing Plaintiff from the ballot would leave the Natural Law

Party “in a bad position.” R. 8-5, Page ID #13.

       The public interest is perhaps the most paramount here. By the time the district court ruled,

at least 45 of Michigan’s counties, including its two largest ones, had begun to print

ballots. Changing the ballot at this late a date would be even more disruptive. The ballots are now

printed. The Michigan Constitution provides for absentee voting during the 40 days before an


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No. 24-1799, Kennedy v. Benson


election—that started September 26, 2024. See Mich. Const. of 1963 art. 2, § 4(1)(h). Plaintiff

does not explain how to unring the bell at this juncture without great harm to voting rights and the

public’s interest in fair and efficient election administration.      The district court did not

abuse its discretion by finding that an injunction at this late stage would disrupt the orderly

administration of the upcoming election. Benisek v. Lamone, 

 (2018); Estill

v. Cool, 

 (6th Cir. 2008).

                                      III.   CONCLUSION

       For the reasons set forth above, this Court AFFIRMS the judgment of the district court.




                                                - 11 -
No. 24-1799, Kennedy v. Benson



        McKEAGUE, Circuit Judge, dissenting. This case involves yet another attempt by a

state election official to influence the upcoming presidential election by manipulating state election

procedures. On August 23, 2024, Robert F. Kennedy, Jr. tried to withdraw his name from

Michigan’s general election ballot. Michigan Secretary of State Jocelyn Benson denied Kennedy’s

request, citing a state law that, in her view, prevented minor party candidates from withdrawing

from the election. The parties then took their dispute to state court. While the litigation was

pending, Secretary Benson sent the “call of the election” to county clerks across the state, pursuant

to a deadline set by state law. The call of the election did not include Kennedy’s name. Then, after
the state court litigation concluded—and three days after the statutory deadline—Secretary Benson

sent an “updated” call of the election that added Kennedy’s name to the ballot. This action was

unilateral, unauthorized, and likely illegal.

        Kennedy now seeks injunctive relief in federal court, claiming that Secretary Benson’s

addition of his name to the ballot constituted compelled speech. Because Secretary Benson’s

actions violated Kennedy’s First Amendment rights and serve no purpose other than to sow

needless confusion in a presidential election by including a candidate who has no intention to

serve, I respectfully dissent.


                                                   I.

        The facts of this case are undisputed and summarized in the majority opinion. But the

majority leaves out several facts that are critical to resolving this case.

        The Natural Law Party nominated Kennedy as its candidate for President of the United

States on April 17, 2024. On August 23, Kennedy suspended his presidential campaign. That same

day, Kennedy delivered a withdrawal notice to the Michigan Bureau of Elections. The Bureau of

Elections rejected Kennedy’s notice and informed him that 

.686a(2)

prohibited minor party candidates from withdrawing. After Kennedy renewed his request to




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No. 24-1799, Kennedy v. Benson



withdraw, the Bureau of Elections rejected him again, this time citing 

.686a(4).

       Kennedy then filed a lawsuit in state court, requesting mandamus, injunctive, and

declaratory relief. The core of that case was a question of statutory interpretation: whether 

.686a prohibited Kennedy from withdrawing from the election. The Michigan

Court of Claims held that Kennedy was not entitled to a writ of mandamus and dismissed

Kennedy’s complaint. At no point did the Court of Claims order Secretary Benson to keep

Kennedy’s name on the ballot.
       On September 6, the Michigan Court of Appeals reversed the Court of Claims order and

held that Kennedy was entitled to mandamus relief. Again, the decision was based on statutory

interpretation. After surveying a web of cross-referencing state election laws, the court held that

Kennedy had a “clear legal right” to remove his name from the ballot.

       Under state law, Secretary Benson was required to distribute the “call of the election” to

the clerk of each Michigan county “at least 60 days” before the election. 

; Brater Aff., R.8-5 at PageID 157. This year, the deadline was September 6—the same

day the Court of Appeals issued its order. Within hours after the Court of Appeals released its

decision, Secretary Benson issued the call of the election; Kennedy was not listed as a candidate.

       Three days after the deadline for the call of the election, the Michigan Supreme Court

reversed the Court of Appeals. Like the Court of Claims, the Supreme Court did not order Secretary

Benson to put Kennedy’s name on the ballot. It did not conclude that state law prohibited minor

party candidates from withdrawing. Instead, it held that Kennedy had not satisfied the criteria for

obtaining mandamus relief. In short, the order simply ended the state court case.

       But Secretary Benson wasn’t done. That same day, her office sent an “updated candidate

listing” to the county clerks. Kennedy’s name reappeared on the ballot. To date, Secretary Benson

has not identified any statute, rule, or court order that required her—or even permitted her—to add
a candidate to the ballot after the statutory deadline.


                                                 - 13 -
No. 24-1799, Kennedy v. Benson



       One day after Secretary Benson added Kennedy’s name to the ballot, Kennedy filed this

lawsuit. Kennedy raised three constitutional claims and sought a temporary restraining order and

preliminary injunction that would enjoin Secretary Benson from including his name on the ballot.

In one of his claims, Kennedy alleged that Secretary Benson compelled his speech—and thus

violated the First Amendment—by including his name on the ballot against his will. Critically,

Kennedy’s asserted injury arose not from Secretary Benson’s refusal to accept his withdrawal in

August, but from her decision to put his name back on the ballot on September 9—after the

statutory deadline.
       The district court denied Kennedy’s motion for a preliminary injunction, and Kennedy

timely appealed. See 

(a)(1).


                                                II.

       The district court denied Kennedy’s motion for a preliminary injunction because it was

procedurally barred and failed to establish a constitutional violation. The denial of a preliminary

injunction is reviewed for an abuse of discretion. O'Toole v. O'Connor, 

 (6th Cir.

2015). When a preliminary injunction implicates the First Amendment, the district court’s legal

rulings—including its First Amendment conclusion—are reviewed de novo. 

 (citing Platt v. Bd.

of Comm'rs on Grievances & Discipline of Ohio Sup. Ct., 

 (6th Cir. 2014)).

A.     Procedural Bars

       In denying Kennedy’s motion for a preliminary injunction, the district court found that his

claims are barred by (1) res judicata, (2) laches, and possibly (3) the Rooker-Feldman doctrine.

The majority agrees that res judicata bars all three of Kennedy’s claims. But in reaching these

conclusions, the district court and the majority mischaracterize the source of Kennedy’s injury.

       1.      Res Judicata

       Res judicata does not bar Kennedy’s claim. Res judicata prevents a party from relitigating
a cause of action that was already decided by a prior court. Prewett v. Weems, 

,

                                               - 14 -
No. 24-1799, Kennedy v. Benson



462 (6th Cir. 2014). It bars claims that were actually raised or could have been raised in the prior

proceeding. 

 (citing Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 

 (6th Cir. 1990)). Federal courts must give a state-court judgment the same preclusive effect as

would the state where the judgment was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ.,

 (1984); see also 

. In Michigan, “[r]es judicata bars a second

action on the same claim if (1) the prior action was decided on the merits, (2) both actions involve

the same parties or their privies, and (3) the matter in the second case was, or could have been,

resolved in the first.” Mecosta Cnty. Med. Ctr. v. Metro. Grp. Prop. & Cas. Ins. Co., 

, 405 (Mich. 2022) (citations omitted).

       Here, the district court found that the Michigan Court of Claims already decided Kennedy’s

First Amendment claim. The timeline of events, however, belies this conclusion. In this case, the

asserted injury that gave rise to Kennedy’s First Amendment claim was not the Bureau of

Elections’ rejection of Kennedy’s notice of withdrawal in August. Instead, the asserted injury was

caused by Secretary Benson’s decision to put Kennedy back on the ballot on September 9, three

days after she distributed the call of the election without his name. The decision to alter the ballot

occurred after the Michigan Supreme Court dismissed Kennedy’s complaint with prejudice. Thus,

Kennedy could not have raised his First Amendment claim during the state court litigation. See
Adair v. State, 

 (Mich. 2004) (stating that res judicata bars claims “arising

from the same transaction that the parties, exercising reasonable diligence, could have raised but

did not”).

       The majority notes that Kennedy filed a similar “compelled speech claim” in state court.

That may be so, but that alone does not trigger res judicata. Kennedy is not relitigating Secretary

Benson’s decision to reject his withdrawal notice in August. Rather, he is alleging that Secretary

Benson violated his First Amendment rights by adding his name to the ballot without justification

on September 9. Because res judicata only bars a subsequent action between the same parties when



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No. 24-1799, Kennedy v. Benson



the “essential facts are identical,” it does not apply to Kennedy’s new claim. Dart v. Dart,

 (Mich. 1999).

       2.      Laches

       Kennedy’s claim is also not barred by laches. Laches is the “negligent and unintentional

failure to protect one’s rights.” E.E.O.C. v. Watkins Motor Lines, Inc., 

 (6th Cir.

2006) (citation omitted). It is an affirmative defense that consists of two elements: (1) unreasonable

delay in asserting one’s rights; and (2) a resulting prejudice to the defending party. Operating

Eng’rs Loc. 324 Health Care Plan v. G & W Const. Co., 

 (6th Cir. 2015)

(citation omitted).

       Kennedy did not unreasonably delay in bringing his federal lawsuit. The asserted injury—

Secretary Benson’s decision to put Kennedy on the ballot after sending out the call of the

election—occurred on September 9. See Brater Aff., R.8-5 at PageID 157. Kennedy filed his

federal complaint on September 10. Because this one-day delay was not unreasonable, and

Secretary Benson did not provide any evidence of prejudice, laches does not apply either.

       3.      The Rooker-Feldman Doctrine

       The majority and the district court incorrectly conclude that Kennedy’s claim “may also be

precluded” by the Rooker-Feldman doctrine. The doctrine prevents federal district courts from

hearing “cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced.” Brent v. Wayne Cnty. Dep't

of Hum. Servs., 

 (6th Cir. 2018) (quoting Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 

 (2005)). To determine if the doctrine applies, courts look to the

source of the asserted injury in the federal complaint. Berry v. Schmitt, 

 (6th Cir.

2012) (citation omitted). If the injury is caused by the defendant’s actions, and not by the state

court decision itself, then Rooker-Feldman does not apply. Brent, 

.




                                                - 16 -
No. 24-1799, Kennedy v. Benson



       Secretary Benson—not any state court judgment—is the source of Kennedy’s asserted

injury. To be sure, if a state court had ordered Secretary Benson to keep Kennedy’s name on the

ballot, then this would be a different case entirely. But that’s not what happened. The Court of

Claims order did not require Secretary Benson to reject Kennedy’s notice of withdrawal. See Mich.

Ct. Cl. Order, R.1-4 at PageID 34. Similarly, the Michigan Supreme Court order did not demand

that Secretary Benson take any action at all. Instead, the court merely held that Kennedy had not

satisfied the requirements for mandamus relief. See Mich. Sup. Ct. Order, R.1-6 at PageID 38.

       After the state case concluded on September 9, Secretary Benson “sent an updated
candidate listing” to the county clerks. Brater Aff., R.8-5 at PageID 157. Secretary Benson claims

that altering the ballot after the statutory deadline was “merely compliance with the Supreme

Court’s decision.” Not so. This action was not compelled by any state court judgment, and it was

not permitted by state law. See 

 (1954). Thus, Rooker-Feldman is

inapplicable, and there are no procedural bars to deciding Kennedy’s claim on the merits.

B.     Substantive Claims

       Kennedy is entitled to a preliminary injunction. When deciding whether to grant a

preliminary injunction, a court must consider four factors: (1) whether the plaintiff has a substantial

likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury without

an injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether

the public interest would be served by granting an injunction. Liberty Coins, LLC v. Goodman,

 (6th Cir. 2014). In cases alleging a First Amendment violation, “the likelihood

of success on the merits often will be the determinative factor.” See Obama for Am. v. Husted,

 (6th Cir. 2012) (quoting Jones v. Caruso, 

 (6th Cir. 2009)).

This is because “[t]he loss of First Amendment freedoms…unquestionably constitutes irreparable

injury.” Elrod v. Burns, 

 (1976).




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No. 24-1799, Kennedy v. 

.      Likelihood of Success on the Merits

       In his complaint, Kennedy alleges that Secretary Benson’s unilateral decision to put his

name back on the ballot amounts to compelled speech, in violation of the First Amendment.

Kennedy likely would succeed on this claim.

       First Amendment protections encompass conduct that communicates a message. Texas

v. Johnson, 

 (1989). Conduct falls within scope of the First Amendment if (1)

the speaker has the intent to convey a particular message, and (2) the viewer would likely

understand the message. 

. The First Amendment also guarantees the right to refrain from

speaking. Wooley v. Maynard, 

 (1977). The state infringes on this right when it

compels an individual to engage in communicative conduct that she finds unacceptable. See W. Va.

State Bd. of Educ. v. Barnette, 

 (1943).

       In the context of elections, restrictions on access to the ballot can implicate the First

Amendment’s protection of political expression. See Ill. State Bd. of Elections v. Socialist Workers

Party, 

 (1979) (“[A]n election campaign is a means of disseminating ideas as

well as attaining political office… Overbroad restrictions on ballot access jeopardize this form of

political expression.”); Schmitt v. LaRose, 

 (6th Cir. 2019) (“[T]he Supreme

Court has acknowledged that a person or party may express beliefs or ideas through a ballot.”).

       Undoubtedly, the state can place restrictions on ballot access, and courts have routinely
upheld state laws that regulate how a candidate can get on the ballot. But that’s not what happened

here. Kennedy’s asserted injury did not arise from Secretary Benson’s invocation of 

.686a in August. It did not arise from any state law. Instead, his claim is based on

Secretary Benson’s decision to put him back on the ballot—after his name was removed, after the

ballots were certified, and after the statutory deadline. To be sure, there is no precedent squarely

holding that adding a person’s name to the presidential ballot against their will violates the First
Amendment. But then again, Secretary Benson’s actions are unprecedented.


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No. 24-1799, Kennedy v. Benson



        As it stands, the presidential ballot in Michigan conveys to the public that Kennedy is still

seeking votes for the presidency. This is a message that Kennedy expressly disavowed on August

23, and yet it is now perpetuated by Secretary Benson’s actions. Thus, her decision is subject to

strict scrutiny, a test which she surely fails. See Turner Broad. Sys., Inc. v. FCC., 

 (1994) (“Laws that compel speakers to utter or distribute speech bearing a particular message

are subject to…rigorous scrutiny.”).

        2.      Remaining Preliminary Injunction Factors

        While the likelihood of success is typically dispositive, the remaining preliminary
injunction factors also support Kennedy’s motion.

        First, the balance of equities weighs against Secretary Benson. Under state law, Secretary

Benson was required to deliver a list of candidates that will appear on the ballot for the general

election on September 6. See 

 (1954). And yet, without any

explanation, her office sent the counties an “updated candidate listing” that included Kennedy’s

name on September 9. This decision was apropos of nothing.

        Secretary Benson cannot use 

.686a as justification; the question

here is not whether minor party candidates can withdraw from the election, but whether the

Secretary of State has unchecked discretion to add candidates to the presidential ballot after the

certification deadline. Even the district court acknowledged that this action “may have exceeded

the bounds of her office.” Order, R.14 at PageID 309.

        Moreover, she cannot use the Michigan Supreme Court order as a shield. As described

above, this was not an attempt to “compl[y] with the Supreme Court decision.” Nor was her

decision blessed by “judicial authority.” The Michigan Supreme Court order simply found that

Kennedy was not entitled to mandamus relief. It did not order her to alter the list of candidates that

was already distributed to the county clerks. It did not set aside the statutory deadline. It did not
justify a post hoc alteration of the ballot.


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No. 24-1799, Kennedy v. Benson



        In short, Secretary Benson cannot point to any law that gave her the authority to withdraw,

edit, and redistribute the list of presidential candidates after the statutory deadline.

        Second, the public interest weighs in Kennedy’s favor. “[P]rotecting public confidence in

elections is deeply important—indeed, critical—to democracy.” Democratic Exec. Comm. of Fla.

v. Lee, 

 (11th Cir. 2019) (citing Crawford v. Marion Cty. Election Bd.,

 (2008) (plurality)). Contrary to this fundamental truth, Secretary Benson used

her office to intentionally alter the ballot of a presidential election. And for what purpose? What

reason did Secretary Benson have for adding a withdrawn candidate to the ballot after the call of
the election was distributed to the county clerks? Surely it was not to streamline logistics or

minimize voter confusion. This court—and the public—is left searching for an answer.

        On appeal, Secretary Benson notes that “a State has an interest, if not a duty, to protect the

integrity of its political processes from frivolous or fraudulent candidacies.” Appellee Br. at

42 (quoting Storer v. Brown, 

 (1974)). I agree. Yet her office intentionally altered

the ballot by inserting a “frivolous” presidential candidate. As Kennedy correctly points out,

Secretary Benson’s decision will allow voters to select a candidate who does not want the job. In

the voting booth, the new ballots will convey to voters that Kennedy is vying for the presidency.

It suggests that a vote for Kennedy will not be a vote wasted. An inaccurate ballot will inevitably

cause confusion, and it will undermine faith in this core democratic institution.


                                                  III.

        If this court ordered the district court to grant Kennedy’s motion preliminary injunction, a

difficult question would arise: what is the proper remedy for this constitutional infirmity? It’s

undeniable that “[a] state's interest in proceeding with an election increases as time passes,

decisions are made, and money is spent.” Nader v. Blackwell, 

 (6th Cir. 2000).

And Secretary Benson correctly notes that, as of September 26, registered Michigan voters are
entitled to vote an absent ballot. See Mich. Const. 1963, Art. 2, § 4(1)(h).


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No. 24-1799, Kennedy v. Benson



        But Secretary Benson can hardly complain about the “chaos” that would ensue from

reprinting the ballots when her actions caused them to be misprinted. Kennedy filed his withdrawal

notice on August 23, two weeks before the deadline for the call of the election. Instead of simply

removing his name from the ballot, Secretary Benson repeatedly rejected Kennedy’s requests. On

the day of the statutory deadline, the state pressed on with its appeal to the Michigan Supreme

Court. And then three days after the deadline, Secretary Benson inserted his name back onto the

ballot. Apparently, some deadlines matter, and some do not.

                                                ***
        Secretary Benson’s decision to add Kennedy to the ballot was arbitrary. It was unchecked.

It conveys a message that Kennedy does not wish to send. And it will cause voters to waste their

fundamental right to vote. The ballots—with Kennedy’s name on them—are already printed, and

the election is underway. I can only hope that the weight of one state election official’s thumb does

not tip the scale of a national election.




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