Michigan State A. Philip Randolph Institute v. Johnson, 090518 FED6, 18-1910

Docket Nº:18-1910
Opinion Judge:BOGGS, CIRCUIT JUDGE.
Party Name:MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE; MARY LANSDOWN; ERIN COMARTIN; DION WILLIAMS; COMMON CAUSE Plaintiffs-Appellees, v. RUTH JOHNSON, in her official capacity as Michigan Secretary of State Defendant-Appellant.
Judge Panel:BEFORE: BOGGS, KETHLEDGE, and DONALD, Circuit Judges. KETHLEDGE, CIRCUIT JUDGE, CONCURRING. BERNICE BOUIE DONALD, Circuit Judge, dissenting.
Case Date:September 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE; MARY LANSDOWN; ERIN COMARTIN; DION WILLIAMS; COMMON CAUSE Plaintiffs-Appellees,

v.

RUTH JOHNSON, in her official capacity as Michigan Secretary of State Defendant-Appellant.

No. 18-1910

United States Court of Appeals, Sixth Circuit

September 5, 2018

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: BOGGS, KETHLEDGE, and DONALD, Circuit Judges.

BOGGS, CIRCUIT JUDGE.

This litigation commenced in 2016 with the filing of plaintiffs' complaint attacking recently passed legislation, PA 268, which eliminated Michigan's straight-ticket voting option. PA 268 aligned Michigan with the large majority of states that require voters to vote individually for numerous partisan offices, rather than allowing them to make one mark to select a party's slate for many offices. Discovery was completed by September 29, 2017. The district judge then conducted a bench trial, though no witnesses were heard. The litigation was essentially conducted on voluminous documents and depositions.

The district court issued a lengthy opinion on August 1, 2018, enjoining application of the Michigan law on two constitutional grounds and as a violation of Section 2 of the Voting Rights Act ("VRA"). Defendants filed a notice of appeal on August 13 and, pursuant to Fed. R. App. P. 8(a)(1)(C), moved for a stay in the district court on August 14. On August 23, the district court denied that motion. On August 30, defendant-appellant Ruth Johnson, the Michigan Secretary of State, moved this court to stay or immediately reverse the district court's order so that Michigan can proceed with its November election under PA 268 as the Legislature intended.

The stay factors are four-fold: (1) the likelihood that the party seeking the stay will prevail on the merits-which, in the case of staying a permanent injunction, constitutes the likelihood of reversal; (2) the likelihood that the moving party will be irreparably harmed; (3) the prospect that others will be harmed by the stay; and (4) the public interest in the stay. Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991); see also Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016); Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006).

The likelihood of success is perhaps the most important factor. Of course, the plaintiffs bear the burden of proving their claims in this case. That means, for purposes of the motion here, that the Secretary must show a likelihood that the plaintiffs have not borne that burden.

As stated above, the movant must show a likelihood of reversal. Michigan Coal. of Radioactive Material Users, 945 F.2d at 153. On appeal, we review the district court's legal conclusions de novo and its factual findings for clear error. Ibid.

"[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). The public interest is in the proper application of federal and constitutional statutory provisions, and in "the will of the people of Michigan being effected in accordance with Michigan law." Coalition to Defend Affirmative Action, 473 F.3d at 252.

The district court's opinion is extensive, but its underpinnings are quite weak. As the district court noted, a number of states have eliminated straight-ticket voting in recent years. The first state to do so, Massachusetts, adopted the so-called "office block" ballot in 1888. More than twenty-five states did not permit straight-ticket voting before 1994. Currently, forty states other than Michigan do not permit straight-ticket voting, 1 including Democratic-leaning states such as Massachusetts, California, New York, and Washington. Rhode Island-which, like Michigan, lacks early voting and no-excuse absentee voting-likewise banned straight-ticket voting in 2014. Act of July 1, 2014, 2014 R.I. Pub. Laws chs. 279, 280. As a logical matter, whichever party is in the minority in an area often favors the office-block system, hoping that some of its candidates may prevail if voters are "nudged" to consider their individual merits against a generally adverse partisan tide. So the public interest in allowing the Michigan legislature to make a public policy decision affecting a debate that has continued in America for over a century is quite weighty.

The district court's decision rests almost entirely on conclusions about the practical effect of requiring individual consideration of each office. First, the district court found that voting individually for each of the approximately eighteen partisan offices on Michigan's ballot, rather than casting one straight-ticket vote, would take a voter three additional minutes or, alternatively, add 25% to the voter's total voting time. Second, this increase in voting time for many individual voters would in turn increase the time that it takes all voters in a precinct to vote once they arrive at the polling place. In other words, eliminating straight-ticket voting would make casting an individual ballot take longer, causing delays for all voters at a polling station.

As to the first conclusion, the three-minute increase is essentially pulled out of the air. Christopher Thomas, the then-Michigan Director of Elections, simply stated that he and Bureau of Elections staff, in consultation with county and municipal clerks, estimated that figure. We have no information about how they reached that estimate or what data they considered, making it difficult to assess its reliability. As for the 25% figure-which the district court mentions frequently-its flaws are obvious. Associate Professor Theodore Allen, the plaintiffs' expert and the source of the number, explained how he determined it: I personally timed myself on the whole ballot and the other one and I came up with that kind of ballpark and then I learned about other ballots that were much longer and there were 32 partisan races and so I wanted to come up with something that was simple, that was understandable, and that's where I came up with that.

Theodore Allen Dep. 240:22-241:3. He also had plaintiffs' counsel time herself. Finally, he said: [O]ther people had mentioned reports from the experts and so it said that this would be more than one minute and it could be up to five minutes. So I mean . . . I heard about it, and so from that whole discussion I decided to come up with a simple formula that would in my mind be conservative.

Theodore Allen Dep. 241:8-14.

In any event, any number of policy decisions might influence the length of time it takes an individual voter to vote, in addition to, obviously, each voter's own decisions. Having judicial elections increases that time. Having non-partisan elections, which cannot be affected by the choice to have straight-ticket voting or not, adds to the time to vote. Allowing citizens to vote on legislation or propositions, by whatever means, adds to voting time. Deciding how many local offices to elect can add to that time: some states elect coroners, jailers, drain commissioners, and surveyors on partisan ballots. All of these are policy choices a state may legitimately make, and yet all would be subject to attack if individual voting time were a consideration that courts could use to strike down legislation.

All these choices reflect a deliberate determination that it is better if voters are encouraged or required to make individual assessments of candidates, rather than mass choices. That may be a bad determination. Some political scientists think so. But most American states have made the opposite choice, not only as to straight-ticket voting for partisan races, but by allowing and requiring choices on a large number of other ballot items. That choice is not an arbitrary one, nor is it a "tenuous" interest. See Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2018 WL 3769326, at *37 (E.D. Mich. Aug. 9, 2018).

The second basic pillar of the district court's decision is an increase in total wait time. Once again, the district court's findings lack rigor. The closest that the court came to providing even an estimate of the increase in wait time is where it mistakenly stated that Allen "found that the eradication of straight-ticket voting would increase wait times by 25% or more for every voter who previously voted a straight-ticket." Michigan State A. Philip Randolph Inst., 2018 WL 3769326, at *9. The court then repeated this error in its denial of the Secretary's Emergency Motion for a Stay Pending Appeal. See Michigan State A. Philip Randolph Inst. v. Johnson...

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