U.S.

Michigan’s Ban on Straight-Ticket Voting Hits a Legal Roadblock

On Wednesday, a federal judge ruled that the law violated the Voting Rights Act and the equal-protection clause of the Constitution.

On Wednesday, federal district-court judge Gershwin A. Drain held that Michigan’s elimination of straight-ticket voting violates the Voting Rights Act and the equal-protection clause of the Constitution. Drain, a Barack Obama appointee serving in the Eastern District of Michigan, entered a permanent injunction barring the state from implementing Senate Bill 13, which passed on its third attempt in December of 2015.

From 1891 until Bill 13’s passage, Michigan voters had the option of voting for all the candidates of a given political party by shading in one oval, instead of shading in ovals for each individual candidate. Such straight-ticket or straight-party voting is allowed in only about ten states, and when Republican governor Rick Snyder signed SB-13 into law in January 2016, Michigan became the 14th state in recent years to eliminate the straight-party option and “instead require voters to select an individual for each elective office, rather than simply selecting a political party.”

While the Michigan legislature intended SB-13 to take effect immediately, several plaintiffs — both individuals and organizations such as Common Cause — filed suit in federal court to prevent the state from implementing the law in the then-upcoming November 2016 presidential election. Three months before the election, Judge Drain entered a preliminary injunction, putting SB-13 on hold and allowing straight-party voting to remain an option while the lawsuit was pending.

Since then, the parties have engaged in discovery and presented evidence to the district court, including dueling expert witnesses who hypothesized the impact of SB-13 on wait times and African Americans’ ability to vote. After hearing all the evidence, the court held that SB-13 “impermissibly infringes on African-Americans’ right to vote, illustrates a discriminatory intent or purpose on the part of the Michigan Legislature, and disparately impacts African-Americans’ opportunity to participate in the political process in conjunction with lingering effects of social and historical discrimination.” As such, SB13 “violates both the Equal Protection Clause and the VRA,” the district court held, before permanently enjoining the statute.

In holding that the law infringes on African Americans’ right to vote, Judge Drain first concluded, based on the plaintiffs’ expert witnesses, that removing the straight-party-voting option would substantially increase wait times, as much as doubling the delay according to some evidence. The district court then concluded — again, based on testimony from expert witnesses — that “African-American voters will face disproportionately longer lines and wait times and will be deterred from voting.” The court gave two reasons for this disparity: One, “African-American voters use the straight-party option far more than whites,” and two, in Michigan, “African-Americans have lower levels of literacy than whites, which will lead to more time spent completing a ballot or abandonment of a ballot prior to completion.” This fact, the judge concluded, would “deter a substantial and disproportionate number of African-Americans from voting.”

Whether victory will come on appeal or in the state house is unclear, but one thing is sure: It won’t come before this November’s election.

Judge Drain further found that the Michigan legislature had a “discriminatory intent or purpose” in passing SB-13. The court made clear there was “no evidence of racial animus,” but nevertheless believed that the evidence revealed “that Michigan’s Republican-dominated legislature enacted SB-13 to win elections — especially down-the-ticket contests — through suppressing African-Americans’ reliably Democratic votes.”

The district court’s conclusion was flawed. While the evidence showed that Michigan Republicans believed they would receive more votes down-ticket if straight-party voting was eliminated, there was no evidence that the GOP thought removing the straight-ticket option would suppress African-American votes. In fact, the state’s witnesses stressed a very different purpose entirely: seeking to ensure more-informed decisions by voters. In other words, the Republicans did not seek to suppress African-American votes to defeat Democrats; Republicans sought to suppress straight-party voting to defeat Democrats. Nonetheless, Judge Drain believed that the Republicans’ desire to win more elections, when coupled with evidence that additional wait times have a disproportionate impact on African Americans, allowed the plaintiffs to prevail in their intentional-discrimination claim under the equal-protection clause.

The court also found that the plaintiffs had proven their Voting Rights Act claim that SB-13 disproportionately impacts African Americans, given the links between “social and historical conditions of discrimination.” Here, the court focused on evidence of historical discrimination in education, housing, and employment.

Michigan intends to appeal the district court’s decision to the Sixth Circuit Court of Appeals. The Sixth Circuit previously refused to stay the preliminary injunction barring enforcement of SB-13, so the odds on appeal do not favor the state. But Michigan is not without options: In striking down SB-13, the district court stressed the fact-intensive nature of its inquiry and highlighted the other restrictive aspects of Michigan’s voting laws, which distinguish it from the other states that have abandoned straight-party voting. Michigan, for example, does not offer early voting and allows absentee voting only in narrow circumstances. Should the legislature decide to allow early voting or no-cause absentee ballots, then it likely could successfully eliminate straight-line voting.

Whether victory will come on appeal or in the state house is unclear, but one thing is sure: It won’t come before this November’s election.

Margot Cleveland is a lawyer, CPA, stay-at-home mom, and former full-time faculty member and current adjunct professor at the college of business at the University of Notre Dame.

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