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In a decision that could have ramifications up and down the Nov. 6 ballot, a federal appeals panel on Wednesday reinstated Michigan's legislative ban on straight ticket voting.

In a 2-1 decision, the panel of the 6th Circuit U.S. Court of Appeals ruled Detroit U.S. District Court Judge Gershwin Drain erred in concluding the state’s GOP-led Legislature “intentionally discriminated against African Americans” by banning straight-ticket voting.

The two judges granted Attorney General Bill Schuette's request to let the 2015 law take effect as the appeal continues, deciding Schuette would likely prevail in defending the elimination of the straight-ticket-voting option. 

At issue is the Michigan Legislature's 2015 ban on straight ticket voting, which allows voters to make a single mark to signal their support for every candidate of a given party. The ban was challenged in a lawsuit and stopped from taking effect multiple times through injunction. 

The timing of the ruling allows clerks statewide to format the November ballot accordingly and inform the public of the voting change, Secretary of State Ruth Johnson said.

“Michigan now joins more than 40 other states in which voters choose the person instead of the party,” Johnson said in a statement. “For too long, important ballot questions and nonpartisan offices, including judges of all types, were skipped over by people who marked a straight ticket thinking they had voted their full ballot.”

Straight-ticket voting has been considered usually beneficial to Democrats, although President Donald Trump's narrow 2016 victory in Michigan aided Republicans. Reviving the ban might help Republicans in the fall.

The main rationale for striking down the new law was that it supposedly would add an estimated 3 minutes to the voting process in a statewide election, a projection the two judges found suspect and unscientific.

A number of policy decisions could influence the time it takes to vote, including judicial elections, non-partisan candidates, differences in the number of elected local officials on a ballot  and “obviously, each voter’s own decisions,” said Judge Daniel Boggs, a President Ronald Reagan appointee who wrote the majority opinion.  

“All of these are policy choices a state may legitimately make, and yet all would be subject to attack if individual voting time were a consideration that courts could use to strike down legislation,” he wrote.

Legislators argue the elimination of straight ticket voting would encourage more informed voting, increase the possibility that a third party could win election, and decrease the likelihood that voters would miss nonpartisan portions of the ballot. 

Opponents filed a lawsuit opposing the ban in May 2016, arguing the measure  would disproportionately affect black residents and increase the time it would take them to vote in districts where lines may already be long.

Former Michigan Democratic Party Chairman Mark Brewer, who filed the lawsuit, was not immediately available for comment. 

Drain issued four preliminary injunctions against state election officials in 2016 and forced the continuation of the straight-party-ticket option during the presidential election. The Detroit judge said the new law would reduce African-Americans’ opportunity to participate in the state’s political process and put a disproportionate burden on African-Americans’ right to vote.

Drain, a President Barack Obama appointee, cited a report by Kurt Metzger, a retired Metro Detroit demographer, who found a direct correlation between the use of straight-party voting within a community and the African-American population within that community.

While it is clear that straight-ticket voting rates are higher in Detroit than other parts of the state, "that is a matter of degree, not of kind, and is clearly linked to strong partisanship, rather than race," Boggs wrote. 

"The alleged evils of eliminating Michigan’s straight-ticket system seem unlikely to outweigh the ability of a state to make a public policy choice common across all 50 states. This makes it unlikely that the plaintiffs will prevail on the merits."  

Boggs was joined in the ruling by Judge Raymond Kethledge of Michigan, who was a finalist for the U.S. Supreme Court vacancy that President Donald Trump is trying to fill with the appointment of federal District of Columbia Appeals Court Judge Brett Kavanagh.

A mixture of policy and partisanship may be behind the Legislature's straight-ticket voting ban, said Kethledge, an appointee of President George W. Bush. But Drain erred "in equating partisan motives with racial ones," he said.

The remedy for people unhappy with the ban is not a federal ruling, Kethledge said, but "to wait the extra 20 minutes or so (according to the district court’s estimate) in line at the polls, and then vote to turn out the state legislators who supported the law." 

Judge Bernice Bouie Donald dissented, saying the appellate panel's decision ignores 150 years of the disenfranchisement of African-American voters through "overt and covert mechanisms."

"It also ignores the fact that Michigan began efforts to dismantle this practice immediately after the passage of the 1964 Civil Rights Act, whose very purpose was to outlaw discrimination and to increase participation by African Americans in American society," wrote Donald, who was appointed by Obama. "Voter disenfranchisement, suppression, and oppression of African Americans is woven into the fabric of America."

eleblanc@detroitnews.com

(517) 371-3661

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