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Continuing with the “Litigation Week” theme here at the blog …
Last week, a federal court in Michigan issued an injunction blocking a new law that eliminates straight ticket voting in the Great Lakes State, citing racial disparities in the use of the practice across the state. The Detroit Free Press has more:
In a ruling with strong implications for the Nov. 8 presidential election in Michigan, a federal judge [has] blocked Michigan’s recent ban on straight-party voting, saying the change would result in longer lines and wait times at polling places and that it would disadvantage black voters the most.
“The court finds (the law) presents a disproportionate burden on African Americans’ right to vote,” partly because, in Michigan’s most populous counties, there is a strong correlation between the size of the black voting population and the use of straight-ticket voting, U.S. District Judge Gershwin Drain, who issued a preliminary injunction against the state law, said in a written opinion …
Drain said “time is of the essence” because the election is less than four months away, and “election officials need to have adequate time to prepare.”
Under the judge’s order, the case would still go to trial to decide the merits. Drain said he issued the injunction because the plaintiffs have a good chance of winning, and he intends for straight-ticket voting to be in place for the November election, barring a successful appeal.
This ruling does not overturn the ban; it merely blocks it from going into effect for the November elections. The court would hear a formal challenge “on the merits” after the election. Still, Drain’s opinion discussed the plaintiffs’ likelihood of success – focused extensively on the high rates with which African-American voters use straight ticket voting – and criticized the state for what he called inadequate funding for implementing election changes in the wake of the ban:
Straight-party voting, in which all candidates of a single party are picked with just a single mark, is popular in Michigan cities with large black populations, especially Flint and Detroit, election data show.
Lawyers say more than 70% of ballots in Detroit and Flint have been cast as straight-party votes.
“The real question that the court must answer is whether the burdens caused by P.A. 268 are in part caused by or linked to social and historical conditions that have produced or currently produce discrimination against African Americans,” wrote Drain, a former Wayne County Circuit Court judge appointed to the federal bench by President Barack Obama in 2012. “This question is unavoidably answered in the affirmative.
“African Americans are much more likely to vote Democrat than other ethnic groups, and many feel this is largely due to racially charged political stances taken by Republicans on the local, state and national level since the post-World War II era,” the judge said…
Drain also described as “woefully insufficient” a $5-million appropriation the Legislature attached to the straight-ticket bill, “presumably to be spent on more voting booths and staff.”
“There is evidence that it would actually take $30 million, six times the amount appropriated, to adequately combat the long lines,” the judge said.
State officials have indicated they intend to appeal before the election, but election clerks are pleading with them not to:
House Speaker Kevin Cotter, R-Mt. Pleasant, blasted the “bizarre ruling,” saying “Michigan voters want to vote for people, not parties.”
“The court’s opinion did not focus enough on the needs of voters, instead fighting odd rhetorical battles over which party deserves to win the trust of certain voters,” Cotter said in a statement.
“The people of Michigan deserve better, and I hope they will receive it after an appeal…”
In a statement, the Michigan Association of Municipal Clerks said it did not support the change in state law eliminating straight-ticket voting, but was committed to implementing it.
“Now that Judge Drain has issued a preliminary injunction suspending the law for the November election, we must express our strong recommendation that the Secretary of State and Attorney General refrain from appealing the judge’s ruling until after the November elections,” said Sarah Bydalek, Walker City Clerk and association president.
“An appeal prior to the November election would leave too much uncertainty for our hardworking clerks and elections workers and undoubtedly cause confusion with voters that could affect the integrity of this important election,” she said.
The state isn’t heeding those calls – the state Attorney General says an appeal to the Sixth Circuit is in the works.
Just like its counterparts in Virginia, Wisconsin, Texas and Kansas, this case is incredibly important – not just in Michigan, and not just because of its effect on the November election. Judge Drain’s ruling includes a detailed analysis under Section 2 of the Voting Rights Act – including the so-called Gingles test that examines the “totality of circumstances” underlying the interaction between an election law and protected minority voters within the community. That analysis will almost certainly be the focus of any appeal – and clarity on the appropriateness of the Gingles factors could help guide courts and policymakers on whether and how Section 2 limits changes to election law or procedure in practice.
There’s not much time to get it settled, however; one way or another, absentee ballots must be printed and on their way to voters no later than late September. Don’t be surprised if it goes all the way down to the wire.
Stay tuned …