Schuette takes straight-ticket fight to Supreme Court

Jonathan Oosting, and Jennifer Chambers

Lansing — Attorney General Bill Schuette on Friday filed an emergency application asking the U.S. Supreme Court to reinstate Michigan’s new straight-ticket voting ban in time for the Nov. 8 election, a request one legal expert called “exceedingly unlikely” to succeed.

Schuette, representing Secretary of State Ruth Johnson, requested a response by Thursday, one day before the statewide ballot is set to be finalized.

“Michigan has joined 40 other states by requiring voters to actually vote for each candidate they intend to support — in other words, by eliminating straight-ticket voting,” Schuette wrote. “This change is not a burden on voting — it is the very act of voting.”

The emergency motion came less than 24 hours after the U.S. Sixth Circuit Court of Appeals rejected Schuette and Johnsons’ request for an “en banc” hearing over the new straight-ticket voting law, approved by the Republican-led Legislature in December.

U.S. District Judge Gershwin A. Drain, a Democratic appointee, first struck down the straight-ticket ban in July, ruling it could create longer lines on Election Day that would disproportionately affect black voters and limit their ability to participate in the political process.

Schuette is requesting a stay of Drain’s preliminary injunction pending a federal appeals court decision on the full merits of the case. “Michigan’s law is neutral, not discriminatory — it applies to all voters, regardless of race,” he wrote.

Robert Sedler, an expert on U.S. constitutional law and a professor at Wayne State University’s Law School, said it’s “exceedingly unlikely, virtually impossible that the Supreme Court would grant view.”

“The four liberals are not going to grant any review, and I don’t think conservatives would be interested in the Sixth Circuit case,” Sedler said. “Schuette was hoping that a majority of Sixth Circuit judges who were appointed by Republican presidents would agree to a hearing en banc. They aren’t that political, and they very rarely grant a hearing en banc on a temporary order. So there will be no ban on straight-party voting in Michigan.”

Schuette is seeking immediate relief, noting the partisan portion of the statewide ballot that will be affected by straight-ticket voting is already being processed. The ballot wording for any statewide proposals is due next Friday, and Johnson needs a response by the previous day “to comply with her statutory duties,” he wrote.

Sixth Circuit Judge Danny Julian Boggs, siding with the state in a Thursday dissent, had suggested the type of filing Schuette made Friday was one of “the only avenues” left for the state to pursue before the Nov. 8 election.

Michigan Democratic Party Chairman Brandon Dillon has called on Schuette to end the emergency appeals and let straight-ticket voting continue this fall.

“He’s wasting people’s time, he’s wasting taxpayer dollars and he’s actually really telling voters in Michigan that his responsibilities to attorney general are to his big campaign contributors and not making sure we have an efficient, fair election.”

Senate Majority Leader Arlan Meekhof, R-West Olive, welcomed Schuette’s move.

“I strongly support the attorney general’s decision to appeal the most recent ruling regarding the elimination of straight-ticket voting in Michigan to the U.S. Supreme Court,” Meekhof said in a Friday statement. “The Senate voted to eliminate this outdated practice and bring Michigan in line with the 40 other states that no longer allow straight-ticket voting.”

The Board of State Canvassers is set to meet Thursday to hear reports on four state House primary election recounts, one of the final steps before ballots are finalized.

Ingham County Clerk Barb Byrum, a Democrat, said Schuette’s continued appeals have complicated the ballot preparation process.

“He’s hanging out this uncertainty to clerks,” she said. “We can’t wait for him to finally realize that he’s lost. We have to have ballots ready for military and overseas voters (by Sep. 24).”

Byrum said her office plans to send proofs to candidates on Tuesday, allowing them to review the ballot and to notify the clerk’s office of any issues, such as a misspelled name. In 2014, her office sent out proofs on Sept. 8, she said.

Staff writer Michael Gerstein contributed