LANSING - The full U.S. 6th Circuit Court of Appeals won't hear Attorney General Bill Schuette's appeal of a federal judge's injunction against a state law banning straight-party voting in Michigan, the court said today.
Instead, the appellate court sent the case back to the same three-judge panel of the 6th Circuit that earlier refused to block a preliminary injunction against the law, issued by U.S. District Judge Gershwin Drain in Detroit, who said it was likely the law would unconstitutionally disadvantage black voters.
Now, that same three-judge panel is to give expedited consideration of Schuette's appeal of Drain's preliminary injunction, instead of the full panel of 6th Circuit judges, as Schuette requested.
The latest ruling makes it likely, though not certain, that Michigan voters will be able to use straight-party voting on Nov. 8, despite a law banning the practice passed late last year by the Republican-controlled Legislature.
It's possible, but unlikely, that the panel, which earlier upheld Drain's reasoning, could now reverse itself after receiving more legal arguments from both sides of the dispute.
Schuette's request for his appeal to be heard by all 15 active 6th Circuit judges was circulated and "less than a majority of the active judges voted in favor" of hearing the case, according to an order released Thursday.
"The preliminary injunction keeps in place the law of Michigan for the past 125 years allowing straight-party voting," said Circuit Judge Karen Nelson Moore, concurring in the majority decision that all circuit judges would not hear the case in what is known as an "en banc" hearing.
She said it is standard for a three-judge panel to rule on the merits of an appeal before an en banc hearing is requested, and called appealing directly to the full panel of judges "a clear attempt at an end-run" around the 6th Circuit's operating procedures.
There was no immediate word from Schuette on his next step. "At this time, we are reviewing the court’s ruling," Schuette spokeswoman Adrea Bitely said Thursday.
In a dissent, Circuit Judge Danny Boggs described Drain's preliminary injunction as a "radical departure, imposed in the midst of a national campaign season," which would frequently be stayed in similar circumstances. He said it would be "extremely difficult" to now get the case before the U.S. Supreme Court before the Nov. 8 election, since Thursday's action by the 6th Circuit — sending the appeal back to the panel that dealt with the case earlier — can't be directly appealed to the Supreme Court.
"The will of Michigan's people, expressed though their Legislature, was to have the same system as the large majority of states, containing the large majority of voters," Boggs said.
Michigan voters have twice gone to the ballot to reject laws banning straight-party voting, most recently in 2002. But the latest ban on straight-party voting included a $5-million appropriation, which under Michigan law makes it referendum-proof.
Drain ruled that banning straight-party voting would result in longer lines and waiting times to vote. That would disadvantage all voters, but especially black voters because data show the use of straight-party voting is strongest in large Michigan cities such as Detroit, where blacks are concentrated, he said.
Mark Brewer, an attorney for nonprofit groups and individuals opposed to the ban on straight-party voting, said Schuette should not appeal the issue further, because it is creating too much uncertainty among local clerks with the deadline for finalizing the ballot drawing near.
Brandon Dillon, chairman of the Michigan Democratic Party, said Secretary of State Ruth Johnson should "step up" and tell Schuette to halt the appeals.
“Bill Schuette and Ruth Johnson work for the people of Michigan, not the Republican Party, and dragging this out any further sends a clear signal that elections don’t matter to them," Dillon said.
But House Speaker Kevin Cotter, R-Mt. Pleasant, said Boggs got it right in his dissent.
“With today’s decision mandating straight-ticket voting, Michigan is being treated differently than every other state in the Union," Cotter said in a news release.
"Only Michigan is forced to keep in place a tool of party-machine politics. Only Michigan is bound by discredited case law that has already been vacated and rejected. And, unlike the 49 other states that get to decide whether to have straight-ticket voting — 39 have said ‘no’ — only Michigan has been ordered by the federal court to have it or else."
On Aug. 18, Johnson and Schuette, who are both Republicans, made an emergency motion for the en banc review, saying Drain's injunction, "if valid, effectively nullifies duly enacted, race-neutral legislation ... mere weeks before submission of ballots to the printer."
Johnson argues 40 other states don't allow straight-ticket voting and says voting entails casting a ballot for a chosen candidate, "rather than blindly voting for all candidates of a party."
Each side accuses the other of dragging its feet on the case and risking confusion for voters through a late court decision.
Ballots must be available to absentee voters by Sept. 24 and officials want to have the ballot finalized by Sept. 9 to allow time for printing, said Fred Woodhams, a spokesman for the Secretary of State's Office.
Brewer, a former chairman of the Michigan Democratic Party, argued that to allow Drain's injunction to continue pending further court proceedings can't upset the election, because it merely maintains what has been the status quo in Michigan for 125 years.
The law banning straight-party voting was passed by the Republican-led Legislature late last year and signed into law by GOP Gov. Rick Snyder in January.
Clerks say banning straight-ticket voting will cause delays, especially if the change isn't coupled with any-reason absentee voting, which the Michigan Legislature considered, but did not approve.
The citizen group Common Cause, which is a party to the litigation, applauds Thursday's ruling, said Allegra Chapman, the group's director of voting and elections.
"The courts have been clear all along that the Legislature’s move would discriminate against communities of color,” Chapman said. “Common Cause will continue to be vigilant against any and all attempts to curtail voting rights, both in Michigan and around the country.”
Contact Paul Egan: 517-372-8660 or email@example.com. Follow him on Twitter @paulegan4.
Detroit Free Press