Lawsuit: Straight-ticket ban violates First Amendment

Jennifer Chambers
The Detroit News

Detroit — A federal judge said he would decide this week whether to expand a civil lawsuit over Michigan’s ban on straight-ticket voting to include an allegation that state lawmakers intentionally discriminated against African Americans by approving the ban.

On Tuesday, an attorney for the Michigan state A. Randolph Institute, Common Cause and three Michigan voters asked U.S. District Judge Gershwin A. Drain to add a First Amendment claim to the complaint they filed against Michigan Secretary of State Ruth Johnson in June over the ban.

The institute argued the straight-ticket ban would increase Election Day wait times that are more common in minority-majority districts.

Attorney Mary Ellen Gurewitz, who represents the institute, told Drain she wants to amended the original complaint to add a First Amendment claim because she intends to prove it was the intent of the Michigan Legislature to discriminate against African-American voters because they primarily vote Democratic.

The original complaint alleged a violation of the equal protection clause, Gurewitz said, but that does not require a showing of intentional discrimination.

Adding the new claim will allow the plaintiff to show there was evidence of intentional discrimination, she said.

“There was a discriminatory impact on African Americans, and we intend to prove it was the intent of the Legislature to have that impact,” Gurewitz said.

Asked to explain her statement further after court, Gurewitz declined, saying the facts would come out at trial.

Republican legislators approved the law in December 2015 on the grounds it would encourage a more informed electorate. The straight-ticket option lets voters make one mark to select all Democratic or all Republican candidates on a ballot, rather than selecting individual candidates for each office.

In court representing Johnson, assistant Attorney General Rock Wood told Drain there was no basis to add a First Amendment claim.

“There is no speech ... that is being impeded. Instead of pushing one notch or button, you push six,” Wood said.

Michigan voters were able to use the option of straight-ticket voting in the November election after the U.S. Sixth Circuit Court of Appeals and Drain issued ruling that suspended the ban.

Drain, a Democratic appointee of President Barack Obama, rejected the state’s straight-ticket ban in July, finding that the change could create longer lines on Election Day that would disproportionately affect black voters and limit their ability to participate in the political process.

The U.S. Sixth Circuit Court of Appeals also rejected a request in August by Johnson for an “en banc” hearing on a stay request of Drain’s preliminary injunctions against the straight ticket-voting ban.

Michigan was one of 10 states that still allowed straight-ticket voting before the legislation. Several others have moved to eliminate the option in recent years.