Page:King v. Whitmer (20-13134) (2020) Opinion and Order.pdf/9

 Eleventh Amendment immunity is subject to three exceptions: (1) congressional abrogation; (2) waiver by the State; and (3) “a suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law.” See Carten v. Kent State Univ., 282 F.3d 391, 398 (6th Cir. 2002) (citations omitted). Congress did not abrogate the States’ sovereign immunity when it enacted 42 U.S.C. § 1983. ''Will v. Mich. Dep’t of State Police'', 491 U.S. 58, 66 (1989). “The State of Michigan has not consented to being sued in civil rights actions in the federal courts.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004) (citing Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986)). The Eleventh Amendment therefore bars Plaintiffs’ claims against the Michigan Board of State Canvassers. See McLeod v. Kelly, 7 N.W.2d 240, 242 (Mich. 1942) (“The board of State canvassers is a State agency …”); see also ''Deleeuw v. State Bd. of Canvassers'', 688 N.W.2d 847, 850 (Mich. Ct. App. 2004). Plaintiffs’ claims are barred against Governor Whitmer and Secretary Benson unless the third exception applies.

The third exception arises from the Supreme Court’s decision in Ex parte Young, 209 U.S. 123 (1908). But as the Supreme Court has advised: To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle … that Eleventh Amendment immunity represents a real