In 2015, Republican legislators sought to consolidate their enormous political advantage (through gerrymandering) by eliminating straight ticket voting in Michigan, something Michiganders have been able to do since 1891. This move, in addition to suppressing the votes of Black Michiganders, had the advantage of increasing the probability that Republicans would win statewide seats like the State Board of Education and University Boards of Regents and Trustees. These are races that are often decided on by voters based on the political party the candidates belong to.
In the summer of 2016, a federal judge struck down the ban, putting a stay on Public Act 268. In the well-written and well-reasoned decision, U.S. District Court Judge Gershwin A. Drain found that PA 268 inordinately impacts Black voters and that “African-Americans are much more likely to vote Democrat than other ethnic groups, and many feel this is largely due to racially charged political stances taken by Republicans on the local, state and national level since the post-World War II era.”
If you’re interested in why this law would be so detestable, have a look at the terrific essay from Ingham County Clerk Barb Byrum HERE.
After that decision, Secretary of State Ruth Johnson and Attorney General (and current candidate for governor) Bill Schuette, both hardcore, ideological Republicans, appealed the decision and sought to have the stay lifted in time for the 2018 general election in November. Earlier this month on August 1st, in a stunning rebuke, Judge Drain permanently barred Johnson from enforcing a straight-ticket voting ban, saying that the law “reflects racial discriminatory intent harbored by the Michigan Legislature, and disparately impacts African-Americans’ opportunity to vote in concert with social and historical conditions of discrimination.”.
Ouch.
Naturally, Johnson appealed and, yesterday, was denied yet again in another of Judge Drain’s impressive decisions
In his decision, Judge Drain had this to say:
After trial in this case and on August 1, 2018, the Court issued a 103 page Opinion and Order and held that the Plaintiffs had proven all three of their claims. There, the Court concluded that the Plaintiffs’ proof, including their evidence regarding current voting conditions in Michigan, entitled them to a permanent injunction of PA 268. The Court did not hold that the Michigan Legislature can never eliminate straight-ticket voting, regardless of any changes in the voting patterns of Michigan residents or in the State’s voting laws easing access to the polls, e.g. the adoption of no-reason absentee voting, early voting, or both. The Court instead determined that as long as access to the polls in Michigan remains as restricted as it is today and current straight-ticket voting rates persist, PA 268 is both unconstitutional and unlawful.
In his August 1st decision, Judge Drain referred to comments made by then-Michigan Republican Party Chair Ronna Romney McDaniel. Here’s how the Detroit Free Press reported on it:
Evidence in the case included depositions, text messages and other exchanges involving lawmakers, Michigan Republican Party Chairwoman Ronna Romney McDaniel, who now heads the Republican National Committee, and current state Chairman Ron Weiser.
“Ronna Romney McDaniel conceded that she supported PA 268, in part, because it would help Republican candidates win elections,” Drain wrote.
In her motion to stay, Johnson contended that the Court should NOT have considered Romney McDaniel’s statements. Judge Drain had some pointed words in response to that bit of nonsense:
The Court should ignore the testimony from Ronna Romney McDaniel, the Secretary says, because McDaniel was not a member of the Michigan Legislature which passed PA 268. But if the Court were to accept the Secretary’s invitation, the Court would miss crucial context for the enactment of PA 268. McDaniel was the chair of the Michigan Republican Party for much of the relevant time period. Notably, the legislator who sponsored PA 268 said that he did not have the votes to obtain the law’s passage and so he asked McDaniel to help him secure the votes, and she delivered. Given her integral role in the legislative process, the Court rightly examined her statements.
Another argument made by Johnson is a bald-faced confession that effort to end straight ticket voting was politically motivated (despite Republican protestations otherwise) and, therefore, the ruling based on racial discrimination was wrong. Again, Judge Drain wasn’t having it:
The Court previously held that the Michigan Legislature, as an avenue to win elections, intentionally discriminated against African-Americans through suppressing their predominately Democratic Party votes. The Secretary responds that “a finding of politically-based discrimination is a defense to, and defeats, a racial discrimination finding.”
Plaintiffs alleging intentional discrimination based on voting rights legislation “need not show that discriminatory purpose was the ‘sole[ ]’ or even a ‘primary’ motive for the legislation, just that it was ‘a motivating factor.’ ” […] Thus, the Secretary is mistaken when she asserts that, in this litigation, political discrimination is a defense to racial discrimination.
It is refreshing, at least, that a Republican leader finally admitted that the ban on straight ticket voting was done to harm Democrats’ chances in elections.
Johnson also argued that people all across the state, including non-Black voters, use straight ticket voting so this wasn’t harm directed specifically at Black voters. Judge Drain, once again, called BS:
She again asserts that, because straight-ticket voting is popular statewide, PA 268 will not disparately impact African-Americans. But Kurt Metzger — who worked for thirty-seven years as a Regional Information Specialist with the United States Census Bureau — found that every community with a high percentage of African American voters had extraordinarily high straight-ticket voting rates relative to those of Michigan as a whole. And contrary to the Secretary’s representations, the Court explicitly held that PA 268 will create dramatically longer lines and increased wait times, which will in turn deter African Americans from voting.
Finally, Judge Drain summed up the entire argument against banning straight ticket voting and its intent to suppress the votes of Black Michiganders:
All Michigan voters will wait in significantly longer lines and will encounter much greater wait times if Michigan were to implement PA 268. These effects would deter a substantial number of people from voting by discouraging them from attending the polls or having them arrive at a polling station only to leave because of long lines and wait times. And African-Americans would disproportionately bear all of these consequences.
It’s possible that Ruth Johnson and Bill Schuette will once again appeal, this time to the 6th Circuit Court of Appeals. In his bid to become governor, Schuette has much to gain from suppressing the votes of Black voters and Johnson appears to be the Republicans’ designated water carrier for this blatant, crass, craven, and anti-democratic political maneuvering. However, absentee ballots must be finalized by September 7th — just 14 days from now — and be printed and mailed shortly after that so there’s little time for that to happen. Also, as Judge Drain pointed out in his decision, Courts tend to favor the status quo “on the eve of an election”:
Furthermore, the public interest in denying the stay finds support in the continuation of Michigan’s tradition of straight-ticket voting. The status quo, the Secretary maintains, is the elimination of straight-ticket voting. To the contrary, since 1891 Michigan voters have been using the straight-ticket option. Implementing PA 268 at this date would engender a significant change in Michigan residents’ exercise of their voting rights, and courts have cautioned against making such changes close to an election. See Johnson III, 833 F.3d at 669 (“This case does not involve the potential disruption of complicated election-administration procedures on the eve of Election Day; rather, denying the Secretary’s request for a stay here will merely require Michigan to use the same straight-party procedure that it has used since 1891.”); see also Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014) (observing that “[t]he Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election”).
Although Ruth Johnson somehow thinks that changing the voting rules at the 11th hour right before an election is somehow “status quo”, Judge Drain correctly “status quo” is to maintain a way of voting that Michiganders have been using for 127 year.
