This week, in yet another setback for GOP voter suppression efforts, the U.S. 6th Circuit Court of Appeal upheld a District Court preliminary injunction that prevented Michigan Republicans from eliminating "straight-party" voting in the Great Lake State. It did so because it found that the plaintiffs in Michigan State Randolph Inst. v. Johnson would likely prevail in their contention that the MI GOP's elimination of straight-party voting violated both the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and Section 2 of the Voting Rights Act (VRA).

"Straight-party voting," the appellate panel explained, "allows a voter to vote for all candidates of their desired political party by making a single mark designating the selection of that political party, rather than voting for each partisan candidate individually."

The court does not suggest that all states must make it available. In fact, many states have never made that form of voting available to their respective electorates. But, the court observed, "straight-party voting has...been available to Michigan citizens for an uninterrupted period of 125 years" --- from 1891 - 2016.

Straight-party voting in Michigan is so popular that voters twice rejected efforts to eliminate it via the referendum process --- first in 1964 and again in 2001. And while, overall, half of the MI electorate takes advantage of the straight-ticket option, this swift and efficient alternative to selecting individual candidates from a long-list of offices on a ballot has been disproportionately relied upon by African-Americans ("67% in 2012, and 73.5% in 2014"), the 6th Circuit panel observed.

However, with their own ability to retain power at stake in 2016 --- especially after the scandalous poisoning of Flint's drinking water --- Michigan Republicans were not inclined to permit either efficiency or popularity to stand in the way...

In a narrow (54-52 in the state's House of Representatives), strictly party-line vote in late 2015, the self-described "fiscally conservative" MI GOP passed legislation which not only repealed straight-party voting, but also included a $5 million appropriation for the purchase of voting equipment needed to implement the elimination of the straight-ticket voting option. The measure was signed into law by Michigan's Republican Governor Rick Snyder last January. The District Court's preliminary injunction was issued on July 21.

The 6th Circuit upheld the injunction on the basis of uncontroverted evidence which revealed that the repeal of straight-party voting would impose a disparate burden on African-Americans. The loss of the efficient ballot marking method would create long lines at the polls that would "impose additional monetary costs on voters...and may even turn some voters away from voting at all," the 6th Circuit panel observed. It would also sew confusion because the state intends to use the "the same graphics that appeared on previous ballots in the straight-party voting section, and are in substantially the same location, but the bubble for selecting the party to vote that party's candidates on a straight-party ticket has been removed."

Although, according to the 6th Circuit panel, the state could neither refute these findings nor offer a state interest that would counter this new disproportionate burden, Michigan's Republican Attorney General Bill Schuette has vowed to seek a stay from the full 6th Circuit Court.

Given that the preliminary injunction issued on July 21 and that voters would more likely be confused by the repeal of straight-party voting, as opposed to its retention, it is exceedingly doubtful that MI Republicans could obtain a stay under the Purcell principle --- the concept adopted by the U.S. Supreme Court in recent years that courts, in order to avoid potential confusion at the polls, should not change election laws at the eleventh hour.

UPDATE: As promised, Citing Purcell, Michigan filed an Emergency Initial Hearing En Banc with the full 6th Circuit. In what looks like an offhand concession that it is now the state which seeks an eleventh hour change in procedures, Michigan asked that the court issue a decision no later than August 30 so that state and local officials can timely initiate ballot preparations.

On September 1, the full 6th Circuit denied the State's petition for an initial hearing en banc.

UPDATE 9/9/16: Over the dissent of Justices Clarence Thomas and Samuel Alito, the U.S. Supreme Court denied Michigan's request that it overturn a stay which blocked its effort to eliminate "straight ticket" voting.

Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

                 

Article Categories: Election Reform, U.S. Constitution, Republicans, Michigan, Voting Rights Act, Election 2016, Rick Snyder