Straight-ticket fight continues with emergency motion

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Michigan Attorney General Bill Schuette on Thursday filed an emergency motion with a federal appeals court seeking last-minute permission for the state to implement a ban on straight-ticket voting for the November election.

The motion, filed on behalf of Secretary of State Ruth Johnson, asks the full U.S. Sixth Circuit Court of Appeals to reconsider a request rejected Wednesday by a three-judge panel, which upheld a Detroit federal judge’s injunction blocking the new Michigan law.

The state is seeking an “en banc” hearing and ruling by Aug. 30, when “the partisan portion of the ballot impacted by this litigation will begin being processed.”

A quick response will “give either side sufficient time to seek review in the Supreme Court,” according to a second emergency motion for immediate consideration.

The appeals court panel on Wednesday declined to overrule Judge Gershwin Drain, an appointee of President Barack Obama, who concluded the law would disproportionally burden African-American voters by increasing wait times in districts that may already have longer-than-usual Election Day lines.

All three judges on the panel were appointed by Democratic presidents. But a majority of Sixth Circuit judges were appointed by Republicans, suggesting the full court could be more sympathetic to state arguments in support of the GOP-backed law.

In a Thursday morning WJR-AM interview, Schuette said he was confident the full court would uphold the straight-ticket ban, approved by the Republican-led Legislature in late 2015 and signed by Gov. Rick Snyder.

“The fact is, this is simply bringing Michigan in sync with some 40 other states across the United States of America that require thoughtful balloting, that eliminated this no-think voting, and that’s what straight-ticket is,” Schuette said.

Straight-ticket allows voters to pick all candidates of a single political party rather than fill in individual bubbles for each. Supporters say it saves voters time, critics say elimination would encourage more informed votes.

The appeals court panel on Wednesday downplayed comparisons between Michigan and other states that have already eliminated straight-ticket voting, noting that Michigan does not offer other time-saving options like early voting or no-reason absentee.

Schuette’s request does not obligate the full court to reconsider the injunction. En banc hearings are typically only ordered if a panel decision conflicts with rulings by the same court or the U.S. Supreme Court, or if the case involves “one or more questions of exceptional importance.”

Former Michigan Democratic Party Chairman Mark Brewer, an attorney for the plaintiffs who sued the state over the law, said he does not think the state can meet that “very, very high standard” for a full court review.

“It’s very difficult under the case law and under the rules of the Sixth Circuit to get this, but unfortunately it’s creating additional uncertainty,” Brewer said. “Clerks have been working and continue working to get the ballots ready for the fall.”

Schuette has asked the Sixth Circuit court for en banc hearings before, including 2011, when the full court reversed a panel decision to strike down Michigan’s voter-approved ban on affirmative action in university admissions or government hiring. The Supreme Court ultimately upheld the ban.

In 2014, Schuette pre-emptively asked the full Sixth Circuit appeals court to hear arguments over Michigan’s gay marriage ban, a request the court denied. Instead, a three judge panel sided with Schuette when it upheld same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, a decision later overturned by the U.S. Supreme Court.