September 7, 2018 | The Daily Signal
ACRU Policy Board Member Hans von Spakovsky
Sanity has prevailed in the 6th U.S. Circuit Court of Appeals.
A three-judge panel of that court, in very strong language, has stayed the absurd decision of an Obama-appointed judge, Gershwin A. Drain, who threw out the Michigan Legislature’s decision to eliminate straight-ticket voting for supposedly violating the Constitution and the Voting Rights Act.
Michigan passed the law back in 2016, thus joining the 40 other states that do not have straight-ticket voting. Straight-ticket voting allows a voter to simply check a box for the Democrat or Republican Party, casting a ballot for all of that party’s candidates who are running for office.
Thus, Michigan required voters to make individual choices on each candidate running for office.
Those who were behind this lawsuit argued that forcing voters to make a choice on each candidate running for office “rather than vote for a party slate en masse” is both unconstitutional and discriminatory under the Voting Rights Act. And a federal district court judge actually agreed with that bizarre argument and placed an injunction on the law.
On Sept. 5, Senior Judge Danny Boggs wrote the 6th Circuit’s opinion staying Drain’s injunction, saying that there “are very serious problems with both the factual underpinnings and the legal analysis” of Drain’s decision. It had “obvious statistical shortcomings” and “took almost no notice of the Michigan voting process.”
Boggs systematically took apart Drain’s decision and his dubious claim that this law was passed with discriminatory intent. As he pointed out, the first state to eliminate straight-ticket voting was Massachusetts in 1888. By 1994, more than 25 states did not allow straight-ticket voting. Today, 40 states in addition to Michigan do not allow it.
None of those laws have ever been found unconstitutional. According to Boggs, “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.”
Drain assumed, on the basis of faulty data, that getting rid of straight-ticket voting would add three minutes to a voter’s total voting time. In his mind, that amounted to an unbearable burden on individual voters and thus a violation of the Equal Protection Clause of the 14th Amendment to the Constitution.
The 6th Circuit disagreed, saying the plaintiff has not shown that the Michigan law “imposes more than a minimal burden on the ability to vote.”
In any event, that three-minute claim was, said Boggs, “essentially pulled out of the air” by state election officials. The court had “no information about the basis for this estimate, making it difficult to assess its reliability.”
Alternatively, Drain accepted the opinion of the expert hired by the plaintiff that eliminating straight-ticket voting would add 25 percent to a voter’s total voting time. But the “flaws” in this estimate were “obvious” to the 6th Circuit.
The expert’s opinion was derived from volunteer observers in just 31 precincts, volunteers who made “recording errors.” The expert also made unexplained “adjustments” and other mistakes, such as failing to account for the number of voting booths in each precinct, which would obviously affect voting times. Drain also confused the time needed to actually cast a ballot with the time spent waiting to vote.
As Boggs pointed out, a whole host of policy decisions made by state legislatures about a ballot can add to voting time. Having judicial elections and/or nonpartisan elections that are not affected by straight-ticket voting adds to the length of time it takes to vote. So does allowing citizens to vote on referenda and propositions.
Increasing the number of offices that are elected rather than appointed, such as “coroners, jailers, drain commissioners, and surveyors,” also adds to the voting time of the average voter.
Yet as Boggs noted, under Drain’s reasoning, all of these “policy choices a state may legitimately make” would “be subject to attack if individual voting time were a consideration that courts could use to strike down legislation.”
Contrary to what Drain said, “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.” According to Boggs, that “choice is not an arbitrary one, nor is it a ‘tenuous’ interest,” as Drain said in his lower court opinion.
Drain also put forward little evidence to support his claim that the Michigan Legislature was engaging in intentional racial discrimination. Boggs explained that the “actual use of straight-ticket voting is strongly correlated to the partisanship of an area, but not to race directly.” In fact, the evidence in the case “showed that strongly Republican areas had high rates of straight-ticket voting as well, though not as high as areas that were strongly Democratic.”
In any event, partisanship does not equal racial discrimination and certainly does not violate the Voting Rights Act. As Judge Raymond Kethledge said in his concurrence, the district court “was most clearly mistaken… in equating partisan motives with racial ones.”
The only evidence of supposed discrimination Drain could cite was not a legislator who supported the bill, but two Democratic legislators who opposed it. According to Boggs, “It goes without saying that we do not judge the intention of a bill’s supporters by the characterization of its opponents.”
Boggs also criticized Drain for relying on a “lobbyist’s exhortations to be evidence of the conduct of other parties,” calling that “quite a stretch.”
The plaintiffs simply had not met their burden of proving the Michigan law “was racially motivated.” As Boggs said, it applies to “all voters… keeps no one away from the polls” and “prevents no one from registering their vote.”
Boggs summarized the question over straight-ticket voting this way:
The alleged evils of eliminating Michigan’s straight-ticket system seem unlikely to outweigh the ability of a state to make a public policy choice common across all 50 states.… The irreparable harm to voters in taking what would be at most very small additional time to register their choices, an additional time largely within the control of the voter, is very small. And the public interest in allowing states to control their own elections is quite strong, as the Constitution itself makes clear.
This case is just another example of liberals trying to use the federal courts to achieve judicially what they cannot achieve through the democratic process.
As Kethledge stressed, the remedy for anyone unhappy with this law “is not another constitutional ruling from the federal courts. The remedy instead is to wait the extra [time] (according to the district court’s estimate) in line at the polls, and then vote to turn out the state legislators who supported the law.”