Straight-ticket appeal met by silence from court

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Secretary of State Ruth Johnson’s request that a full federal appeals court review Michigan’s new straight-ticket voting ban by Tuesday came and went without a response, leaving the fate of the new law in limbo with little more than a week left before a key ballot deadline.

Without action this week or next, Michigan will be unable to implement its straight-ticket voting ban for the first time this fall, meaning voters would continue to see the option on their Nov. 8 ballots.

Johnson is asking the full U.S. Sixth Circuit Court of Appeals to reconsider an Aug. 17 panel decision by three Democrat-appointed judges prohibiting Michigan from implementing a law approved in December by the Republican-led Legislature.

As part of its emergency motion for an “en banc” hearing, the state requested all proceedings be completed by Tuesday, “when the partisan portion of the ballot impacted by this legislation will begin being processed,” according to an Aug. 18 filing by Attorney General Bill Schuette.

Bureau of Elections Director Chris Thomas has called Sept. 9 a “drop-dead” deadline for finalizing the ballot. Wording for any statewide ballot proposals is due by that date, and absentee ballots must be ready to go out by Sept. 24.

“The department requested the court issue a decision by yesterday, but it’s up to the judges when they wish to rule,” Secretary of State spokesman Fred Woodhams said Wednesday, noting that state and local-level primary election recounts are also slowing ballot finalization.

It’s “entirely possible” the full federal appeals court could still act in coming days, according to Mark Brewer, an attorney for the plaintiffs that challenged the law, but he said a late reversal would be “enormously disruptive” for clerks already preparing ballots.

“This really is causing an ongoing problem for the clerks at this point,” said Brewer, the former chairman of the Michigan Democratic Party.

Brewer sued the state in June on behalf of the Michigan State A. Randolph Institute, Common Cause and three Michigan voters, arguing the straight-ticket ban would increase Election Day wait times that are more common in minority-majority districts.

Detroit U.S. District Court Judge Gershwin A. Drain struck down the straight-ticket ban in July, ruling it would reduce African-Americans’ opportunity to participate in the political process and put a disproportionate burden on African-Americans’ right to vote.

Supporters say banning straight-ticket voting would encourage a more informed electorate and applies equally to all voters. Johnson and Schuette are asking the appeals court to reinstate what they call “duly enacted, race-neutral legislation.”

A majority of judges on the full U.S. Sixth Circuit Court of Appeals were appointed by Republican presidents, suggesting they could be more sympathetic to the GOP-approved law that Democrat-appointed judges have so far rejected.

Supporters were buoyed last week by a Sixth Circuit panel decision in a separate Ohio case. In their majority opinion, judges bemoaned several other pending appeals “asking the federal courts to become entangled, as overseers and micromanagers, in the minutia of our state election processes.”

Schuette, citing that opinion, told the court that earlier rulings in Michigan’s straight-ticket case had “upset the balance between the state and federal governments” by blocking “a presumptively constitutional, democratically enacted statute, even though the statute simply governs the manner of voting by requiring voters to actually vote for each candidate they intend to support.”

As of Wednesday afternoon, the full court had not yet responded to Johnson and Schuette’s request for immediate consideration.

Michigan Democratic Party Chairman Brandon Dillon called on them to drop the appeal, suggesting that ongoing uncertainly so close to the election “will only lead to more concern and confusion than its already caused.”