CLOSED,APPEAL,BENCH_TRIAL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:16−cv−11844−GAD−MKM

Michigan State A. Philip Randolph Institute et al v. Johnson Assigned to: District Judge Gershwin A. Drain Referred to: Magistrate Judge Mona K. Majzoub Case in other court: U.S. Court of Appeals − Sixth Circuit,
16−02071/16−02115
U.S. Court of Appeals − Sixth Circuit, 18−01910
U.S. Court of Appeals − Sixth Circuit, 18−01910 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/24/2016 Date Terminated: 08/01/2018 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Michigan State A. Philip Randolph Institute

represented by Mary Ellen Gurewitz Nickelhoff & Widick, PLLC 2211 E. Jefferson Ave., Ste. 200 Detroit, MI 48207 313−496−9441 Fax: 313−965−4602 Email: mgurewitz@michlabor.legal ATTORNEY TO BE NOTICED

Mark C. Brewer Goodman Acker 17000 W. Ten Mile Road 2nd Floor Southfield, MI 48075 248−483−5000 Fax: 248−483−3131 Email: mbrewer@goodmanacker.com ATTORNEY TO BE NOTICED

Plaintiff Mary Lansdown

represented by Mary Ellen Gurewitz (See above for address) ATTORNEY TO BE NOTICED

Mark C. Brewer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Erin Comartin

represented by Mary Ellen Gurewitz (See above for address) ATTORNEY TO BE NOTICED

Mark C. Brewer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dion Williams

represented by Mary Ellen Gurewitz (See above for address) ATTORNEY TO BE NOTICED

Mark C. Brewer (See above for address)

Plaintiff Common Cause
V. Defendant Ruth A. Johnson

ATTORNEY TO BE NOTICED
represented by Mark C. Brewer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Ellen Gurewitz (See above for address) ATTORNEY TO BE NOTICED
represented by Adam L.S. Fracassi Michigan Attorney General P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: AG_PEET@michigan.gov ATTORNEY TO BE NOTICED
Denise C. Barton MI Dept of Atty Gen Public Employment, Elections and Torts Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909−8236 517−373−6434 Fax: 517−373−2454 Email: AG−PEET@michigan.gov ATTORNEY TO BE NOTICED
Elizabeth R. Husa Briggs MI Dept of Attorney General Criminal Appellate Division 525 W. Ottawa St. 4th Floor PO Box 30712 Lansing, MI 48909 517−335−7650 Fax: 517−335−7653 Email: briggse1@michigan.gov ATTORNEY TO BE NOTICED
Erik A. Grill Michigan Department of Attorney General PO Box 30736 Lansing, MI 48909 517−335−7659 Email: grille@michigan.gov ATTORNEY TO BE NOTICED
Heather S. Meingast MI Dept of Attorney General Appellate Division P.O. Box 30736 Lansing, MI 48909 517−335−7659

V. Movant Lisa Lyons
Movant Michael McCready
Movant David Robertson

Email: meingasth@michigan.gov ATTORNEY TO BE NOTICED
Joseph Yung−Kuang Ho Michigan Department of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa St. Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: hoj@michigan.gov ATTORNEY TO BE NOTICED
Kendell S. Asbenson Michigan Department of Attorney General 525 W. Ottawa St. PO Box 30736 5th Floor Lansing, MI 48909 517−335−6303 Email: asbensonk1@michigan.gov ATTORNEY TO BE NOTICED
Rock A. Wood MI Department of Attorney General State Operations Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: AG_PEET@michigan.gov ATTORNEY TO BE NOTICED
represented by Jonathan E. Lauderbach Warner Norcross & Judd, LLP 715 E. Main Street Suite 110 Midland, MI 48640 United Sta 989−698−3700 Email: jlauderbach@wnj.com ATTORNEY TO BE NOTICED
represented by Jonathan E. Lauderbach (See above for address) ATTORNEY TO BE NOTICED
represented by Gary P. Gordon Dykema Gossett 201 Townsend Capitol View Building Suite 900 Lansing, MI 48933−1551 517−373−9133 Email: ggordon@dykema.com

Movant Marty Knollenberg
Movant Arlan Meekhof

ATTORNEY TO BE NOTICED
Jason T Hanselman Dykema Gossett, PLLC 201 Townsend Street Suite 900 Lansing, MI 48933 517−374−9181 Fax: 517−374−9191 Email: jhanselman@dykema.com ATTORNEY TO BE NOTICED
represented by Gary P. Gordon (See above for address) ATTORNEY TO BE NOTICED
Jason T Hanselman (See above for address) ATTORNEY TO BE NOTICED
represented by John D. Pirich Honigman, Miller, (Lansing) 222 N. Washington Square Suite 400 Lansing, MI 48933−1800 517−377−0710 Fax: 517−377−0723 Email: jpirich@honigman.com ATTORNEY TO BE NOTICED

Date Filed 05/24/2016
05/24/2016 05/24/2016
05/26/2016 05/27/2016 05/31/2016 05/31/2016

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−5706592 − Fee: &#036 400. County of 1st Plaintiff: Oakland − County Where Action Arose: Wayne − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17) (Brewer, Mark) (Entered: 05/24/2016)
2 SUMMONS Issued for *Ruth A. Johnson* (LHos) (Entered: 05/24/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LHos) (Entered: 05/24/2016)
3 CERTIFICATE of Service/Summons Returned Executed. Ruth A. Johnson served on 5/26/2016, answer due 6/16/2016. (Acker, Gerald) (Entered: 05/26/2016)
4 MOTION for Preliminary Injunction Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages, Brief in Support of Motion for Preliminary Injunction and Certificate of Service by All Plaintiffs. (Brewer, Mark) (Entered: 05/27/2016)
5 NOTICE of Appearance by Denise C. Barton on behalf of Ruth A. Johnson. (Barton, Denise) (Entered: 05/31/2016)
6 NOTICE of Appearance by Erik A. Grill on behalf of Ruth A. Johnson. (Grill, Erik) (Entered: 05/31/2016)

05/31/2016 05/31/2016 06/01/2016 06/02/2016 06/03/2016 06/15/2016 06/15/2016 06/17/2016 06/17/2016
06/22/2016
06/22/2016 06/22/2016 06/27/2016
06/28/2016 06/28/2016
07/06/2016

7 NOTICE of Appearance by Adam L.S. Fracassi on behalf of Ruth A. Johnson. (Fracassi, Adam) (Entered: 05/31/2016)
8 NOTICE of Appearance by Joseph Yung−Kuang Ho on behalf of Ruth A. Johnson. (Ho, Joseph) (Entered: 05/31/2016)
9 ANSWER to Complaint FIRST AMENDED COMPLAINT by All Plaintiffs. (Brewer, Mark)[NOT AN ANSWER − AMENDED COMPLAINT − ADDING PARTIES] Modified on 7/22/2016 (JOwe). (Entered: 06/01/2016)
10 NOTICE OF HEARING on 4 MOTION for Preliminary Injunction Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages, Brief in Support of Motion for Preliminary Injunction and Certificate of Service. Motion Hearing set for 6/28/2016 02:00 PM before District Judge Gershwin A. Drain. (TBan) (Entered: 06/02/2016)
11 STIPULATED ORDER EXTENDING TIME FOR DEFENDANT TO RESPOND TO PLAINTIFFS COMPLAINT. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 06/03/2016)
12 NOTICE TO APPEAR: Scheduling Conference set for 8/10/2016 11:00 AM before District Judge Gershwin A. Drain. (DPar) (Entered: 06/15/2016)
13 NOTICE OF SCHEDULING CONFERENCE ORDER. Signed by District Judge Gershwin A. Drain. (DPar) (Entered: 06/15/2016)
14 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Defendant's Response in Opposition to (#4) Plaintiffs' Motion for Preliminary Injunction by Ruth A. Johnson. (Barton, Denise) (Entered: 06/17/2016)
15 RESPONSE to 4 MOTION for Preliminary Injunction Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages, Brief in Support of Motion for Preliminary Injunction and Certificate of Service filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit Exh 1− Senate Fiscal Analysis (Nov. 19, 2015), # 3 Exhibit Exh 2− Phillips v Snyder, # 4 Exhibit Exh 3− Affidavit of Christopher M. Thomas) (Barton, Denise) (Entered: 06/17/2016)
16 ORDER GRANTING PLAINTIFFS' MOTION TO FILE A BRIEF IN EXCESS OF 25 PAGES 4 , GRANTING DEFENDANT'S EX PARTE MOTION FOR LEAVE TO FILE EXCESS PAGES FOR BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE 14 , AND ADJOURNING ORAL ARGUMENT UNTIL JULY 14, 2016. Signed by District Judge Gershwin A. Drain. (DPar) (Entered: 06/22/2016)
TEXT−ONLY NOTICE: Hearing on 6/28/16 is Cancelled re 10 Notice of Hearing on Motion. (DPar) (Entered: 06/22/2016)
17 NOTICE OF HEARING. Motion Hearing for Preliminary Injunction 4 set for 7/14/2016 11:00 AM before District Judge Gershwin A. Drain. (DPar) (Entered: 06/22/2016)
18 REPLY to Response re 4 MOTION for Preliminary Injunction Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages, Brief in Support of Motion for Preliminary Injunction and Certificate of Service Reply Brief, Ex Parte Motion for Leave to File a Reply Brief in Excess of 7 Pages and Certificate of Service filed by All Plaintiffs. (Brewer, Mark) (Entered: 06/27/2016)
19 ORDER GRANTING PLAINTIFFS EX PARTE MOTION TO FILE REPLY BRIEF IN EXCESS OF SEVEN PAGES 18 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 06/28/2016)
20 RESPONSE to 4 MOTION for Preliminary Injunction Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages, Brief in Support of Motion for Preliminary Injunction and Certificate of Service filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Senate Fiscal Agency Bill Analysis, # 3 Exhibit 2. McNeilley v Land Order, # 4 Exhibit 3. Phillips v Snyder Order, # 5 Exhibit 4. Thomas Affidavit) (Barton, Denise) (Entered: 06/28/2016)
21 REPLY to Response re 14 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Defendant's Response in Opposition to (#4) Plaintiffs' Motion for Preliminary Injunction Reply Brief and Certificate of Service filed by All Plaintiffs.

07/13/2016 07/13/2016
07/14/2016
07/14/2016 07/21/2016 07/22/2016 07/25/2016
07/25/2016 07/25/2016 07/26/2016 07/27/2016 07/29/2016 08/01/2016 08/01/2016 08/01/2016
08/02/2016

(Brewer, Mark) (Entered: 07/06/2016)
22 MOTION in Limine to Exclude the Testimony of Kurt Metzger and to Strike Report of Theodore Allan and for Entry of Scheduling Order to Conduct Immediate Limited Preliminary Discovery by Ruth A. Johnson. (Grill, Erik) (Entered: 07/13/2016)
23 RESPONSE to 22 MOTION in Limine to Exclude the Testimony of Kurt Metzger and to Strike Report of Theodore Allan and for Entry of Scheduling Order to Conduct Immediate Limited Preliminary Discovery and Certificate of Service filed by All Plaintiffs. (Brewer, Mark) (Entered: 07/13/2016)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Motion Hearing held on 7/14/2016 re 4 MOTION for Preliminary Injunction and 22 MOTION in Limine. Disposition: 22 Motion in Limine Granted in Part and Denied in Part; 4 Ex Parte Motion for Leave to File a Brief in Excess of 25 Pages Taken Under Advisement. (Court Reporter: Merilyn Jones) (SBur) (Entered: 07/14/2016)
Reset Scheduling Conference: Scheduling Conference reset for 8/1/2016 03:00 PM before District Judge Gershwin A. Drain. (SBur) (Entered: 07/14/2016)
24 OPINION AND ORDER Granting Plaintiffs' 4 MOTION for PRELIMINARY INJUNCTION. Signed by District Judge Gershwin A. Drain. (SBur) (Entered: 07/21/2016)
25 AMENDED OPINION AND ORDER Granting Plaintiffs' 4 MOTION for PRELIMINARY INJUNCTION. Signed by District Judge Gershwin A. Drain. (SBur) (Entered: 07/22/2016)
26 TRANSCRIPT of Motion held on 7/14/2016. (Court Reporter: Merilyn Jones) (Number of Pages: 52) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/15/2016. Redacted Transcript Deadline set for 8/25/2016. Release of Transcript Restriction set for 10/24/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/25/2016)
27 NOTICE OF APPEAL by Ruth A. Johnson re 25 Preliminary Injunction. Fee Status: No Fee Paid. (Barton, Denise) (Entered: 07/25/2016)
28 Certificate of Service re 27 Notice of Appeal. (LGra) (Entered: 07/25/2016)
Reset Hearing: Scheduling Conference reset for 9/26/2016 10:00 AM before District Judge Gershwin A. Drain. (SBur) (Entered: 07/26/2016)
Appeal Fee received for 27 Notice of Appeal filed by Ruth A. Johnson in the amount of $ 505.00 − Receipt No. DET094440. (Huff, W.) (Entered: 07/27/2016)
29 Emergency MOTION to Stay re 25 Preliminary Injunction Pending Appeal by Ruth A. Johnson. (Barton, Denise) (Entered: 07/29/2016)
30 ORDER FOR PRELIMINARY INJUNCTION. Signed by District Judge Gershwin A. Drain. (SBur) (Entered: 08/01/2016)
31 MOTION for Leave to File Excess Pages for Defendant's Emergency Supplemental Motion for Stay Pending Appeal by Ruth A. Johnson. (Barton, Denise) (Entered: 08/01/2016)
32 SUPPLEMENTAL BRIEF re 29 Emergency MOTION to Stay re 25 Preliminary Injunction Pending Appeal filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Sixth Circuit COA Docketing Letter) (Barton, Denise) (Entered: 08/01/2016)
33 NOTICE OF APPEAL by Ruth A. Johnson re 30 Preliminary Injunction. Fee Status: No Fee Paid. (Barton, Denise) (Entered: 08/02/2016)

08/03/2016
08/03/2016 08/04/2016 08/08/2016 08/10/2016
08/12/2016 08/15/2016 08/17/2016 08/19/2016 08/22/2016
09/14/2016 09/14/2016 09/19/2016 09/20/2016 11/14/2016 11/15/2016 11/28/2016 12/01/2016 12/01/2016

34 ORDER Granting Defendant's 31 MOTION for Leave to File Excess Pages and Requiring Responsive Pleading to Defendant's 29 MOTION to Stay. (Plaintiffs Response due by 8/8/2016, Defendant's Reply due by 8/12/2016) Signed by District Judge Gershwin A. Drain. (SBur) (Entered: 08/03/2016)
35 Certificate of Service re 33 Notice of Appeal. (LGra) (Entered: 08/03/2016)
Appeal Fee received for 33 Notice of Appeal filed by Ruth A. Johnson in the amount of $ 505.00 − Receipt No. DET094692. (Huff, W.) (Entered: 08/04/2016)
36 RESPONSE to 29 Emergency MOTION to Stay re 25 Preliminary Injunction Pending Appeal filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/08/2016)
37 MOTION TO EXTEND to Respond to First Amended Complaint re 9 Answer to Complaint by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Lansing Automakers Federal Credit Union v MCG Portfolio Mgmt Corp) (Barton, Denise) (Entered: 08/10/2016)
38 REPLY to Response re 29 Emergency MOTION to Stay re 25 Preliminary Injunction Pending Appeal filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Frank v Walker) (Barton, Denise) (Entered: 08/12/2016)
39 OPINION and ORDER Denying Defendant's 29 Emergency MOTION to Stay Preliminary Injunction. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 08/15/2016)
40 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 27 Notice of Appeal filed by Ruth A. Johnson, 33 Notice of Appeal filed by Ruth A. Johnson [Appeal Case Number 16−2071/16−2115] (Ahmed, N) (Entered: 08/17/2016)
41 ORDER Granting In Part and Denying In Part Defendant's 22 Motion in Limine. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 08/19/2016)
42 ORDER Granting Defendant's re 37 MOTION TO EXTEND to Respond to First Amended Complaint re 9 Answer to Complaint filed by Ruth A. Johnson., (Response due by 9/9/2016) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 08/22/2016)
43 STIPULATED ORDER Extending Time for Defendant to Respond to Plaintiffs' Amended Complaint 9 , ( Responsive Pleading due by 11/15/2016.) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 09/14/2016)
44 Notice of E−mail Delivery Failure as to attorney Mary Ellen Gurewitz. Bounced NEF for 42 Order, Set Deadlines/Hearings,,. (SSch) (Entered: 09/14/2016)
45 ORDER from U.S. Court of Appeals − Sixth Circuit re 27 Notice of Appeal filed by Ruth A. Johnson, 33 Notice of Appeal filed by Ruth A. Johnson [Appeal Case Number 16−2071/16−2115] (Ahmed, N) (Entered: 09/20/2016)
Set Deadlines/Hearings: Scheduling Conference reset for 12/5/2016 11:00 AM before District Judge Gershwin A. Drain (TBan) (Entered: 09/20/2016)
46 MOTION for Leave to File Second Amended Complaint by All Plaintiffs. (Attachments: # 1 Exhibit Second Amended Complaint) (Gurewitz, Mary Ellen) (Entered: 11/14/2016)
47 ANSWER to Complaint with Affirmative Defenses by Ruth A. Johnson. (Barton, Denise) (Entered: 11/15/2016)
48 STIPULATED ORDER EXTENDING TIME FOR DEFENDANT TO RESPONDTO PLAINTIFFS' MOTION. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 11/28/2016)
49 NOTICE of Appearance by Rock A. Wood on behalf of Ruth A. Johnson. (Wood, Rock) (Entered: 12/01/2016)
50 RESPONSE to 46 MOTION for Leave to File Second Amended Complaint filed by Ruth A. Johnson. (Wood, Rock) (Entered: 12/01/2016)

12/05/2016 12/05/2016 12/12/2016 12/19/2016
12/20/2016 01/17/2017
01/19/2017
01/26/2017 02/09/2017 03/01/2017 04/20/2017
04/27/2017 06/30/2017 06/30/2017 06/30/2017 07/24/2017 07/24/2017 07/24/2017

51 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Gurewitz, Mary Ellen) (Entered: 12/05/2016)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Scheduling Conference held on 12/5/2016. (Court Reporter: None Present, Not on the Record) (TBan) (Entered: 12/05/2016)
52 REPLY to Response re 46 MOTION for Leave to File Second Amended Complaint filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 12/12/2016)
53 SCHEDULING ORDER: Discovery due by 6/27/2017; Dispositive Motion Cut−off set for 7/31/2017; Final Pretrial Conference set for 9/18/2017 10:00 AM before District Judge Gershwin A. Drain; Bench Trial set for 9/26/2017 09:00 AM before District Judge Gershwin A. Drain Signed by District Judge Gershwin A. Drain. (Refer to image for additional dates) (TBan) (Entered: 12/19/2016)
54 NOTICE OF HEARING on 46 MOTION for Leave to File Second Amended Complaint. Motion Hearing set for 1/17/2017 10:00 AM before District Judge Gershwin A. Drain (TBan) (Entered: 12/20/2016)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Motion Hearing held on 1/17/2017 re 46 MOTION for Leave to File Second Amended Complaint filed by Dion Williams, Michigan State A. Philip Randolph Institute, Common Cause, Erin Comartin, Mary Lansdown Disposition: Motion taken under advisement. (Court Reporter: Merilyn Jones) (TBan) (Entered: 01/17/2017)
55 OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT 46 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 01/19/2017)
56 AMENDED COMPLAINT For Declaratory And Injunctive Relief filed by All Plaintiffs against All Defendants. NO NEW PARTIES ADDED. (Gurewitz, Mary Ellen) (Entered: 01/26/2017)
57 ANSWER to Amended Complaint with Affirmative Defenses by Ruth A. Johnson. (Wood, Rock) (Entered: 02/09/2017)
58 Preliminary WITNESS LIST by Ruth A. Johnson (Barton, Denise) (Entered: 03/01/2017)
59 STIPULATED ORDER Extending Scheduling Order (R.53) Deadlines, ( Discovery due by 8/29/2017, Dispositive Motion Cut−off RE−set for 9/29/2017, Final Pretrial Conference RE−set for 11/27/2017 at 2:00 PM before District Judge Gershwin A. Drain, Jury Trial RE−set for 12/12/2017 at 9:00 AM before District Judge Gershwin A. Drain.) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 04/20/2017)
Set Deadlines/Hearings: Bench Trial RE−set for 12/12/2017 at 9:00 AM before District Judge Gershwin A. Drain. (TMcg) (Entered: 04/27/2017)
60 Plaintiffs WITNESS LIST by All Plaintiffs (Brewer, Mark) (Entered: 06/30/2017)
61 CERTIFICATE OF SERVICE re 60 Witness List by All Plaintiffs (Brewer, Mark) (Entered: 06/30/2017)
62 Defendant's WITNESS LIST by Ruth A. Johnson (Wood, Rock) (Entered: 06/30/2017)
63 ATTORNEY APPEARANCE: Jonathan E. Lauderbach appearing on behalf of Lisa Lyons (Lauderbach, Jonathan) (Entered: 07/24/2017)
64 MOTION to Quash Subpoena by Lisa Lyons. (Lauderbach, Jonathan) (Entered: 07/24/2017)
65 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 64 MOTION to Quash Subpoena filed by Lisa Lyons. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 07/24/2017)

07/25/2017 07/31/2017 07/31/2017 07/31/2017
08/01/2017 08/07/2017
08/07/2017 08/08/2017 08/08/2017 08/08/2017
08/08/2017 08/08/2017 08/08/2017
08/08/2017 08/09/2017 08/14/2017 08/14/2017 08/14/2017 08/15/2017

66 Notice of Determination of Motion Without Oral Argument re 64 MOTION to Quash Subpoena (LBar) (Entered: 07/25/2017)
67 ATTORNEY APPEARANCE: Jonathan E. Lauderbach appearing on behalf of Michael McCready (Lauderbach, Jonathan) (Entered: 07/31/2017)
68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena by Michael McCready. (Attachments: # 1 Exhibit Exhibit A − Subpoena) (Lauderbach, Jonathan) (Entered: 07/31/2017)
69 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena filed by Michael McCready. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 07/31/2017)
70 Notice of Determination of Motion Without Oral Argument re 68 MOTION to Quash Non−Party Michael McCready's Motion to Quash Subpoena (LBar) (Entered: 08/01/2017)
71 MOTION to Quash Subpoena and for Protective Order by David Robertson, Marty Knollenberg. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A − David Robertson Subpoena, # 3 Exhibit B − Knollenberg Subpoena) (Gordon, Gary) (Entered: 08/07/2017)
72 RESPONSE to 64 MOTION to Quash Subpoena filed by Ruth A. Johnson. (Barton, Denise) (Entered: 08/07/2017)
73 ATTORNEY APPEARANCE: Jason T Hanselman appearing on behalf of Marty Knollenberg, David Robertson (Hanselman, Jason) (Entered: 08/08/2017)
74 ATTORNEY APPEARANCE: Gary P. Gordon appearing on behalf of Marty Knollenberg, David Robertson (Gordon, Gary) (Entered: 08/08/2017)
75 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 71 MOTION to Quash Subpoena and for Protective Order filed by Marty Knollenberg, David Robertson. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/08/2017)
76 Notice of Determination of Motion Without Oral Argument re 71 MOTION to Quash Subpoena and for Protective Order (LHos) (Entered: 08/08/2017)
77 NOTICE of Appearance by John D. Pirich on behalf of Arlan Meekhof. (Pirich, John) (Entered: 08/08/2017)
78 MOTION Quash Subpoena by Arlan Meekhof. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8) (Pirich, John) (Entered: 08/08/2017)
79 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 78 MOTION Quash Subpoena filed by Arlan Meekhof. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/08/2017)
80 Notice of Determination of Motion Without Oral Argument re 78 MOTION Quash Subpoena (LHos) (Entered: 08/09/2017)
81 NOTICE of Appearance by Kendell S. Asbenson on behalf of Ruth A. Johnson. (Asbenson, Kendell) (Entered: 08/14/2017)
82 MOTION TO EXTEND Discovery Cutoff re 59 Stipulation and Order, Set Scheduling Order Deadlines,,,, by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/14/2017)
83 RESPONSE to 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena filed by Ruth A. Johnson. (Barton, Denise) (Entered: 08/14/2017)
84 [STRICKEN] STIPULATION re 64 MOTION to Quash Subpoena to Extend Time to Respond by All Plaintiffs (Gurewitz, Mary Ellen) Modified on 8/16/2017 (LHos). (Entered: 08/15/2017)

08/15/2017 08/16/2017
08/16/2017 08/16/2017 08/21/2017 08/21/2017 08/21/2017 08/21/2017 08/21/2017 08/21/2017 08/21/2017
08/22/2017 08/28/2017
08/28/2017 08/28/2017

85 [STRICKEN] STIPULATION re 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena to Extend Time to Respond by All Plaintiffs (Gurewitz, Mary Ellen) Modified on 8/16/2017 (LHos). (Entered: 08/15/2017)
TEXT−ONLY ORDER Striking 85 Stipulation filed by Dion Williams, Michigan State A. Philip Randolph Institute, Common Cause, Erin Comartin, Mary Lansdown, 84 Stipulation filed by Dion Williams, Michigan State A. Philip Randolph Institute, Common Cause, Erin Comartin, Mary Lansdown. **Please see R11 of the ECF Policies and Procedures Manual for Further Instructions** − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 08/16/2017)
86 STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO LISA POSTHUMUS LYON'S MOTION TO QUASH 64 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 08/16/2017)
87 STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO MICHAEL MCCREADY'S MOTION TO QUASH 68 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 08/16/2017)
88 RESPONSE to 64 MOTION to Quash Subpoena filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/21/2017)
89 [STRICKEN] RESPONSE to 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena filed by All Plaintiffs. (Gurewitz, Mary Ellen) Modified on 8/22/2017 (LHos). (Entered: 08/21/2017)
90 RESPONSE to 71 MOTION to Quash Subpoena and for Protective Order filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/21/2017)
91 RESPONSE to 78 MOTION Quash Subpoena filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/21/2017)
92 [CORRECTED] RESPONSE to 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena Corrected Version filed by All Plaintiffs. (Gurewitz, Mary Ellen) Modified on 8/22/2017 (LHos). (Entered: 08/21/2017)
93 RESPONSE to 78 MOTION Quash Subpoena to Non−Party Senator Arlan Meekhof filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Arndt v. Ford Motor Co, # 3 Exhibit 2. Taylor v Countrywide Home Loans) (Barton, Denise) (Entered: 08/21/2017)
94 RESPONSE to 71 MOTION to Quash Subpoena and for Protective Order Non−Party Senator Marty Knollenberg's and Senator David Robertson's filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Arndt v Ford Motor Corp, # 3 Exhibit Taylor v. Countrywide Home Loans) (Barton, Denise) (Entered: 08/21/2017)
TEXT−ONLY ORDER Striking 89 Response to Motion filed by All Plaintiffs (Corrected response filed: see docket entry 92 ) − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 08/22/2017)
95 RESPONSE to 78 MOTION Quash Subpoena filed by Arlan Meekhof. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4) (Pirich, John) Modified on 8/29/2017 (LHos).[DOCUMENT ENTITLED ARLAN MEEKHOF'S REPLY BRIEF IN SUPPORT OF HIS MOTION TO QUASH PLAINTIFFS' SUBPOENAS] (Entered: 08/28/2017)
96 REPLY to Response re 71 MOTION to Quash Subpoena and for Protective Order filed by Marty Knollenberg, David Robertson. (Gordon, Gary) (Entered: 08/28/2017)
97 REPLY to Response re 64 MOTION to Quash Subpoena, 68 MOTION to Quash Non−Party Michael McCready's Motion and Brief to Quash Subpoena Non−Parties Lisa Posthumus Lyons and Michael McCready's Joint Reply in Support of Their Motions to Quash Subpoenas filed by Lisa Lyons, Michael McCready. (Lauderbach, Jonathan) (Entered: 08/28/2017)

08/28/2017
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10/26/2017 10/30/2017 11/07/2017 11/08/2017 11/09/2017 11/09/2017

98 RESPONSE to 82 MOTION TO EXTEND Discovery Cutoff re 59 Stipulation and Order, Set Scheduling Order Deadlines,,,, filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Excerpts of Deposition of Kurt Metzger, # 3 Exhibit 2. Ottawa County Election Results Summary, # 4 Exhibit 3. Cumulative Report, # 5 Exhibit 4. Statement of Votes Cast, # 6 Exhibit 5. Affidavit of Sally Williams) (Barton, Denise) (Entered: 08/28/2017)
99 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION TO EXTEND THE DISCOVERY CUTOFF, AND AMENDING SCHEDULING ORDER. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 09/08/2017)
Set/Reset Scheduling Order Deadlines: Discovery due by 9/29/2017; Dispositive Motion Cut−off reset for 10/16/2017; Final Pretrial Conference reset for 1/23/2018 02:00 PM before District Judge Gershwin A. Drain; Jury Trial reset for 2/6/2018 09:00 AM before District Judge Gershwin A. Drain (TBan) (Entered: 09/08/2017)
100 Ex Parte MOTION for Leave to File Excess Pages for Brief in Support of Motion for Summary Judgment by Ruth A. Johnson. (Barton, Denise) (Entered: 10/12/2017)
101 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS EX PARTE MOTION FOR LEAVE TO FILE EXCESS PAGES 100 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 10/13/2017)
102 MOTION for Summary Judgment by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Metzger deposition excerpts, # 3 Exhibit 2. Rosen expert report, # 4 Exhibit 3. Rozell deposition excerpts, # 5 Exhibit 4. Graves expert report, # 6 Exhibit 5. Herrnson expert report, # 7 Exhibit 6. Senate Fiscal Analysis of SB 13, # 8 Exhibit 7. Governor Signing Letter, # 9 Exhibit 8. LARA search, # 10 Exhibit 9. LARA website search, # 11 Exhibit 10. Dawson deposition excerpts, # 12 Exhibit 11. Lansdown deposition excerpts, # 13 Exhibit 12. Comartin deposition excerpts, # 14 Exhibit 13. Williams deposition excerpts, # 15 Exhibit 14. Chapman deposition excerpts, # 16 Exhibit 15. Swope deposition excerpts, # 17 Exhibit 16. Baxter deposition excerpts, # 18 Exhibit 17. Thernstrom expert report, # 19 Exhibit 18. 2003 PA 298, # 20 Exhibit 19. Thomas deposition excerpts, # 21 Exhibit 20. Thernstrom deposition excerpts, # 22 Exhibit 21. Zaagman emails to Swope, # 23 Exhibit 22. George Herstek report, # 24 Exhibit 23. Ntiri deposition excerpts, # 25 Exhibit 24. Affidavit of Christopher Thomas) (Barton, Denise) (Entered: 10/16/2017)
103 ERRATA Sheet re: 102 MOTION for Summary Judgment filed by Ruth A. Johnson. by Ruth A. Johnson (Attachments: # 1 Exhibit Page 52) (Barton, Denise) (Entered: 10/26/2017)
104 NOTICE OF HEARING on 102 MOTION for Summary Judgment . Motion Hearing set for 1/16/2018 02:00 PM before District Judge Gershwin A. Drain (TBan) (Entered: 10/30/2017)
105 STIPULATED ORDER TO EXTEND TIME TO RESPOND TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 11/07/2017)
106 MOTION for Leave to File Excess Pages for Brief in Opposiion to Motion for Summary Judgment by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 11/08/2017)
107 ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE EXCESS PAGES 106 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 11/09/2017)
108 RESPONSE to 102 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Metzger Expert Report, # 3 Exhibit 2 − Roberts Expert Report, # 4 Exhibit 3 − Allen Expert Report, # 5 Exhibit 4 − Ntiri Expert Report, # 6 Exhibit 5 − Dawson Affidavit, # 7 Exhibit 6 − Chapman Affidavit, # 8 Exhibit 7 − Rosen Dep Excerpts & Exhs, # 9 Exhibit 8 − Thomas Dep Excerpts, # 10 Exhibit 9 − Herrnson Dep Exhs 4 & 7, # 11 Exhibit 10 − Herrnson Dep Excerpts, # 12 Exhibit 11 − Journal of the Senate, # 13 Exhibit 12 − HFA Analysis, # 14 Exhibit 13 − Brown Affidavit, # 15 Exhibit 14 − McDaniel Dep Excerpts, # 16 Exhibit 15 − MRP Document) (Gurewitz, Mary Ellen) (Entered: 11/09/2017)

11/15/2017 11/17/2017 11/28/2017 11/30/2017
11/30/2017
11/30/2017 12/11/2017 12/13/2017 12/14/2017 12/14/2017 12/20/2017 01/04/2018
01/09/2018 01/12/2018 01/12/2018 01/17/2018
01/17/2018 01/19/2018 01/19/2018

109 EXHIBIT 5 − Amended re 108 Response to Motion,,, by All Plaintiffs (Gurewitz, Mary Ellen) (Entered: 11/15/2017)
110 STIPULATED ORDER EXTENDING TIME FOR DEFENDANT'S REPLY TO PLAINTIFFS RESPONSE TO MOTION FOR SUMMARY JUDGMENT. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 11/17/2017)
111 Ex Parte MOTION for Leave to File Excess Pages for Reply to Plaintiffs' Response to Defendant's Motion for Summary Judgment by Ruth A. Johnson. (Barton, Denise) (Entered: 11/28/2017)
112 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR LEAVE TO EXCEED PAGE LIMIT FOR REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 111 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 11/30/2017)
113 MOTION to Strike 108 Response to Motion,,, Affidavits by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Plaintiffs' Witness List, # 3 Exhibit B. Plaintiffs' Initial Disclosures, # 4 Exhibit C. Unpublished cases) (Wood, Rock) (Entered: 11/30/2017)
114 REPLY to Response re 102 MOTION for Summary Judgment filed by Ruth A. Johnson. (Barton, Denise) (Entered: 11/30/2017)
TEXT−ONLY NOTICE: Bench Trial Hearing on 12/12/17 is Cancelled. (TBan) (Entered: 12/11/2017)
115 RESPONSE to 113 MOTION to Strike 108 Response to Motion,,, Affidavits filed by All Plaintiffs. (Brewer, Mark) (Entered: 12/13/2017)
116 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 113 MOTION to Strike 108 Response to Motion Affidavits filed by Ruth A. Johnson. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 12/14/2017)
117 Notice of Determination of Motion Without Oral Argument re 113 MOTION to Strike 108 Response to Motion Affidavits (LHos) (Entered: 12/14/2017)
118 REPLY to Response re 113 MOTION to Strike 108 Response to Motion,,, Affidavits filed by Ruth A. Johnson. (Barton, Denise) (Entered: 12/20/2017)
119 ORDER GRANTING IN PART AND DENYING IN PART NON−PARTIES LISA POSTHUMUS LYONS, MICHAEL MCCREADY, MARTY KNOLLENBERG, DAVID ROBERTSON, AND ARLAN MEEKHOF'S MOTIONS TO QUASH SUBPOENA 64 , 68 , 71 , AND 78 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 01/04/2018)
120 ORDER AMENDING DEADLINES. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 01/09/2018)
121 NOTICE TO APPEAR: Status Conference set for 2/16/2018 02:45 PM before District Judge Gershwin A. Drain (TBan) (Entered: 01/12/2018)
Set Deadlines/Hearings: Status Conference reset for 1/16/2018 02:45 PM before District Judge Gershwin A. Drain (TBan) (Entered: 01/12/2018)
122 ORDER AMENDING SCHEDULING ORDER 99 AND RESCINDING REFERRAL OF DEFENDANT'S MOTION TO STRIKE AFFIDAVITS [113, 116] ( Final Pretrial Conference set for 2/22/2018 02:00 PM before District Judge Gershwin A. Drain) Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 01/17/2018)
Motions No Longer Referred: 113 MOTION to Strike 108 Response to Motion − See Order 122 (LHos) (Entered: 01/17/2018)
123 OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO STRIKE 113 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 01/19/2018)
124 OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 102 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 01/19/2018)

01/23/2018
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02/12/2018 02/12/2018 02/14/2018 02/14/2018

125 TRANSCRIPT of Motion held on 01/16/2018. (Court Reporter: Merilyn Jones) (Number of Pages: 25) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 2/13/2018. Redacted Transcript Deadline set for 2/23/2018. Release of Transcript Restriction set for 4/23/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 01/23/2018)
126 ORDER Setting Telephone Conference Regarding Trial, ( TELEPHONIC Status Conference set for 1/30/2018 at 2:30 PM before District Judge Gershwin A. Drain) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 01/26/2018)
127 STATEMENT of Joint Statement of Issues Presented by Ruth A. Johnson (Barton, Denise) (Entered: 01/29/2018)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Telephonic Status Conference held on 1/30/2018. (Court Reporter: None Present, Not on the Record) (TMcg) Modified on 1/31/2018 (TMcg). (Entered: 01/31/2018)
128 FIFTH AMENDED SCHEDULING ORDER: Final Pretrial Conference set for 2/22/2018 at 2:00 PM before District Judge Gershwin A. Drain Bench Trial (Opening Statements) set for 3/13/2018 at 9:00 AM and Bench Trial (Closing Arguments) set for 4/18/2018 at 9:00 AM before District Judge Gershwin A. Drain. ()SEE ORDER FOR DETAILS) Signed by District Judge Gershwin A. Drain. (Refer to image for additional dates) (TMcg) (Entered: 01/31/2018)
129 NOTICE OF HEARING. Motion Hearing on Evidentiary Objections set for 2/15/2018 at 9:00 AM before District Judge Gershwin A. Drain. (TMcg) (Entered: 01/31/2018)
TEXT−ONLY NOTICE: Jury Trial scheduled on 2/6/2018 is Adjourned re Set/Reset Scheduling Order Deadlines, [SEE 128 FOR UPDATED SCHEDULE]. (TMcg) (Entered: 02/01/2018)
Set/Reset Scheduling Order Deadlines: Bench Trial set for 3/12/2018 at 9:00 AM before District Judge Gershwin A. Drain (TMcg) (Entered: 02/05/2018)
130 OBJECTION to Daphne N'tiri Report; Alternatively Motion to Strike by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Deposition excerpts Daphne N'tiri) (Wood, Rock) (Entered: 02/12/2018)
131 OBJECTION to Dr. Allen's Report; Alternatively Motion to Strike by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Allen deposition excerpts, # 3 Exhibit B − Swope deposition excerpts, # 4 Exhibit C − Baxter deposition excerpts, # 5 Exhibit D − Mr. Allen's notes, # 6 Exhibit E − Thomas deposition excerpts, # 7 Exhibit F − Precinct data collection sheets collected by Plaintiffs, # 8 Exhibit G − Allen proposed report, # 9 Exhibit H − Average waiting time chart, compiling data from exhibit F) (Wood, Rock) (Entered: 02/12/2018)
132 OBJECTION to Plaintiffs' Exhibits by Ruth A. Johnson. (Wood, Rock) (Entered: 02/12/2018)
133 ORDER REGARDING EVIDENCE FOR PRESENTATION AT TRIAL AND GRANTING PARTIES' REQUEST FOR EXTENSION OF FINAL PRETRIAL ORDER DEADLINE. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 02/13/2018)
134 ORDER CONTINUING HEARING ON EVIDENTIARY OBJECTIONS 128 AND ORDERING RESPONSE TO DEFENDANT'S EVIDENTIARY OBJECTIONS. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 02/14/2018)
Set Deadlines/Hearings: Evidentiary Objections Hearing reset for 2/22/2018 02:00 PM before District Judge Gershwin A. Drain (TBan) (Entered: 02/14/2018)

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04/04/2018

135 RESPONSE to 131 Objection,, by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 02/16/2018)
136 RESPONSE to 130 Objection by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 02/16/2018)
137 RESPONSE to 132 Objection by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 19 Senate Bill 13 Signed by Snyder, # 3 Exhibit 20 Posthumus Lyons Dep Transcript, # 4 Exhibit 21 Knollenberg Dep Transcript, # 5 Exhibit 22 Meekhof Dep Transcript, # 6 Exhibit 23 Robertson Dep Transcript, # 7 Exhibit NCSL Rpt on Absentee & Early Voting, # 8 Exhibit 25 WS Article, # 9 Exhibit 26 NY Times Article, # 10 Exhibit 27 FP Article) (Gurewitz, Mary Ellen) (Entered: 02/16/2018)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Motion Hearing not held on 2/22/2018 re 113 MOTION to Strike 108 Response to Motion, Affidavits filed by Ruth A. Johnson, Final Pretrial Conference held on 2/22/2018. Disposition: Trial date set. (Court Reporter: None Present, Not on the Record) (TBan) (Entered: 02/22/2018)
138 OPINION AND ORDER OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT'S EVIDENTIARY OBJECTIONS [130, 131, 132]. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 03/07/2018)
139 FIRST AMENDED ORDER REGARDING PRESENTATION OF EVIDENCE AT TRIAL 133 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 03/07/2018)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Bench Trial Begun and Continued on 3/12/2018. (Court Reporter: Merilyn Jones) (TBan) (Entered: 03/12/2018)
140 TRIAL BRIEF and Submission in Support of Their Request for Permanent Injunctive Relief by All Plaintiffs (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − McDaniel Deposition, p. 31, # 3 Exhibit 2 − Corrected copy of Pg. ID 3297) (Gurewitz, Mary Ellen) (Entered: 03/15/2018)
141 TRIAL BRIEF Submissions by Ruth A. Johnson (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Stephan Thernstrom Deposition Excerpts, # 3 Exhibit B. Allegra Chapman Deposition Excerpts, # 4 Exhibit C. Jason Roberts Deposition Excerpts, # 5 Exhibit D. Chapman Email, # 6 Exhibit E. Steven Graves Deposition Excerpts, # 7 Exhibit F. Joe Rozell Deposition Excerpts, # 8 Exhibit G. Theodore Allen Deposition Excerpts, # 9 Document Continuation G. Theodore Allen Deposition Excerpts con't, # 10 Exhibit H. Paul Herrnson Deposition Excerpts, # 11 Exhibit I. Daniel Baxter Deposition Excerpts, # 12 Exhibit J. Chris Swope Deposition Excerpts, # 13 Document Continuation J. Chris Swope Deposition Excerpts con't, # 14 Exhibit K. Anne Norlander Affidavit, # 15 Exhibit L. Kim Meltzer Affidavit, # 16 Exhibit M. Detroit Precinct Data, # 17 Exhibit N. Absentee Voting Chart, # 18 Exhibit O. Polling Place Procedural Manual, # 19 Exhibit P. Christopher Thomas Deposition Excerpts, # 20 Exhibit Q. Sally Williams Deposition Excerpts, # 21 Exhibit R. Kurt Metzger Deposition Excerpts, # 22 Exhibit S. Laurence Rosen Deposition Excerpts, # 23 Exhibit T. STV Map, # 24 Exhibit U. Ronna Romney McDaniel Deposition Excerpts, # 25 Exhibit V. Daphne Ntiri Deposition Excerpts, # 26 Exhibit W. Robertson Deposition Excerpts, # 27 Exhibit X. Knollenberg Deposition Excerpts, # 28 Exhibit Y. Lyons Deposition Excerpts, # 29 Exhibit Z. Knollenberg Article) (Barton, Denise) (Entered: 03/29/2018)
142 TRANSCRIPT of Bench Trial − Opening Statements held on 3/12/2018. (Court Reporter: Merilyn Jones) (Number of Pages: 70) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/25/2018. Redacted Transcript Deadline set for 5/7/2018. Release of Transcript Restriction set for 7/3/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 04/04/2018)

04/05/2018 04/12/2018
04/13/2018
04/18/2018 04/18/2018 05/21/2018 05/21/2018 07/26/2018 07/27/2018
08/01/2018
08/01/2018 08/09/2018
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08/20/2018
08/23/2018
09/05/2018 09/05/2018

143 SIXTH AMENDED SCHEDULING ORDER 128 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 04/05/2018)
144 ERRATA Sheet re: 141 Trial Brief,,,,,, filed by Ruth A. Johnson. by Ruth A. Johnson (Attachments: # 1 Document Continuation Corrected page 14) (Barton, Denise) (Entered: 04/12/2018)
145 TRIAL BRIEF Reply to Defendant's Trial Submissions by All Plaintiffs (Attachments: # 1 Exhibit 1 − Rosen Deposition Excerpt) (Gurewitz, Mary Ellen) (Entered: 04/13/2018)
146 Proposed Findings of Fact by All Plaintiffs (Gurewitz, Mary Ellen) (Entered: 04/18/2018)
147 Proposed Findings of Fact by Ruth A. Johnson (Barton, Denise) (Entered: 04/18/2018)
148 ORDER CANCELING CLOSING ARGUMENTS 143 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 05/21/2018)
TEXT−ONLY NOTICE: Closing arguments hearing on 5/22/18 is Cancelled. (TBan) (Entered: 05/21/2018)
149 ATTORNEY APPEARANCE: Elizabeth R. Husa Briggs appearing on behalf of Ruth A. Johnson (Briggs, Elizabeth) (Entered: 07/26/2018)
150 NOTICE by Ruth A. Johnson Reminder Notice of the 2018 General Election Timetable (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Affidavit of Sally Williams) (Barton, Denise) (Entered: 07/27/2018)
151 OPINION AND ORDER GRANTING PLAINTIFFS' REQUEST FOR PERMANENT INJUNCTIVE RELIEF Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/01/2018)
152 JUDGMENT. Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/01/2018)
153 AMENDED OPINION and ORDER Granting Plaintiffs' Request for Permanent Injunctive Relief re 151 Memorandum Opinion & Order Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 08/09/2018)
154 NOTICE OF APPEAL by Ruth A. Johnson re 153 Memorandum Opinion & Order. Fee Status: No Fee Paid. (Barton, Denise) (Entered: 08/13/2018)
155 Certificate of Service re 154 Notice of Appeal. (DWor) (Entered: 08/13/2018)
156 Emergency MOTION to Stay re 153 Memorandum Opinion & Order Pending Appeal by Ruth A. Johnson. (Barton, Denise) (Entered: 08/14/2018)
157 Appeal Fee received for 154 Notice of Appeal filed by Ruth A. Johnson in the amount of $ 505.00 − Receipt No. DET116078. (BHan) (Entered: 08/15/2018)
158 ORDER REQUIRING RESPONSE TO THE DEFENDANT'S EMERGENCY MOTION TO STAY MEMORANDUM OPINION AND ORDER PENDING APPEAL 156 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/15/2018)
159 RESPONSE to 156 Emergency MOTION to Stay re 153 Memorandum Opinion & Order Pending Appeal filed by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 08/20/2018)
160 OPINION AND ORDER DENYING EMERGENCY MOTION FOR STAY PENDING APPEAL 156 . Signed by District Judge Gershwin A. Drain. (TBan) (Entered: 08/23/2018)
161 ORDER from U.S. Court of Appeals − Sixth Circuit re 154 Notice of Appeal filed by Ruth A. Johnson [Appeal Case Number 18−1910] (DWor) (Entered: 09/06/2018)
162 ORDER from U.S. Court of Appeals − Sixth Circuit re 154 Notice of Appeal filed by Ruth A. Johnson [Appeal Case Number 18−1910] (DWor) (Entered: 09/07/2018)

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03/15/2019 04/18/2019 04/18/2019
04/22/2019 04/26/2019
05/02/2019 05/02/2019
05/03/2019 05/16/2019

163 ORDER from U.S. Court of Appeals − Sixth Circuit re 157 Appeal Fee Received [Appeal Case Number 18−1910] (SKra) (Entered: 01/16/2019)
164 ORDER Vacating Judgment 152 and Dismissing Case With Prejudice. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 02/07/2019)
165 AMENDED JUDGMENT. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 02/07/2019)
166 MOTION to Vacate 165 Judgment with Brief in Support and Certificate of Service by All Plaintiffs. (Gurewitz, Mary Ellen) (Entered: 02/11/2019)
167 ORDER Granting 166 Motion to Vacate Judgment. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 03/04/2019)
168 NOTICE of Appearance by Heather S. Meingast on behalf of Ruth A. Johnson. (Meingast, Heather) (Entered: 03/07/2019)
169 MOTION Award of Atty Fees and Costs with Attached Affidavits, related Exhibits, Brief in Support and Certificate of Service by All Plaintiffs. (Attachments: # 1 Document Continuation Affidavit of Mary Ellen Gurewitz, # 2 Index of Exhibits Index of Exhibits to Affidavits of Attys Mary Ellen Gurewtiz, and Mark Brewer, # 3 Exhibit Exhibit 1 to Affidavit of Mary Ellen Gurewitz, # 4 Exhibit Exhibit 2 to Affidavit of Mary Ellen Gurewitz, # 5 Document Continuation Affidavit of Mark Brewer, # 6 Exhibit Exhibit 1 to Affidavit of Mark Brewer, # 7 Document Continuation Brief in Support and Certificate of Service) (Gurewitz, Mary Ellen) (Entered: 03/07/2019)
170 STIPULATED ORDER Extending Time for Defendant to Respond to Plaintiff's 169 MOTION Award of Atty Fees and Costs :( Response due by 4/8/2019) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 03/15/2019)
171 MOTION for Leave to File Excess Pages in Response to Plaintiffs' Motion for Award of Attorneys' Fees and Costs by Ruth A. Johnson. (Meingast, Heather) (Entered: 04/18/2019)
172 RESPONSE to 169 MOTION Award of Atty Fees and Costs with Attached Affidavits, related Exhibits, Brief in Support and Certificate of Service filed by Ruth A. Johnson. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Hines v Dewitt; 2. Dalesandro v Int'l Paper; 3. Mich Carpenter v Rogers; 4) Huguley v General Motors; 5. Ford Motor v Llloyd Design, # 3 Exhibit 2. Anglo Danish v Columbian Rope) (Meingast, Heather) (Entered: 04/18/2019)
173 ORDER Granting Defendant's Ex Parte 171 Motion for Leave to File A Response in Excess Pages. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 04/22/2019)
174 STIPULATED ORDER Extending Time for Plaintiffs to Reply to Defendant's Response to Plaintiffs' 171 MOTION for Leave to File Excess Pages in Response to Plaintiffs' Motion for Award of Attorneys' Fees and Costs, ( Reply due by 5/2/2019) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 04/26/2019)
175 Ex Parte MOTION for Leave to File Excess Pages by Common Cause, Mary Lansdown, Michigan State A. Philip Randolph Institute, Dion Williams. (Gurewitz, Mary Ellen) (Entered: 05/02/2019)
176 REPLY to Response re 169 MOTION Award of Atty Fees and Costs with Attached Affidavits, related Exhibits, Brief in Support and Certificate of Service filed by Common Cause, Mary Lansdown, Michigan State A. Philip Randolph Institute, Dion Williams. (Gurewitz, Mary Ellen) (Entered: 05/02/2019)
177 ORDER Granting Plaintiff's Ex Parte 175 Motion for Leave to File Excess Pages. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/03/2019)
178 MOTION Leave to File Sur−Reply to Plaintiffs' Reply to Defendant's Brief in Opposition to Attorneys' Fees re 169 MOTION Award of Atty Fees and Costs with Attached Affidavits, related Exhibits, Brief in Support and Certificate of Service, 176 Reply to Response to Motion, 172 Response to Motion, by Ruth A. Johnson. (Attachments: # 1 Exhibit Proposed Sur−Reply) (Meingast, Heather) (Entered: 05/16/2019)

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179 ERRATA Sheet re: 178 MOTION Leave to File Sur−Reply to Plaintiffs' Reply to Defendant's Brief in Opposition to Attorneys' Fees re 169 MOTION Award of Atty Fees and Costs with Attached Affidavits, related Exhibits, Brief in Support and Certifica filed by Ruth A. Johnson. by Ruth A. Johnson (Attachments: # 1 Document Continuation Errata p i) (Meingast, Heather) (Entered: 05/16/2019)
180 ORDER Denying 178 Motion for Leave to File Sur−Reply to Plaintiffs' Reply to Defendant's Brief in Opposition to Attorney Fees. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/21/2019)
181 OPINION and ORDER Granting Plaintiffs' 169 MOTION Award of Attorneys' Fees and Costs in Part Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/31/2019)

 
 2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 1 of 24 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN, ERIN COMARTIN, and DION WILLIAMS,

No. _ _ _ _ __

Plaintiffs,

v.

RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

Defendant.

-------------------------------~/
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

NOW COME Plaintiffs Michigan State A. Philip Randolph Institute, Mary Lansdown, Erin Comartin and Dion Williams (collectively "Plaintiffs"), by and through their attorneys, Goodman Acker, P.C. and Sachs Waldman, P.C., and for their complaint for declaratory and injunctive relief against Defendant Ruth Johnson, in her official capacity as Michigan Secretary of State, state as follows:
INTRODUCTION

1. This is an action pursuant to 42 U.S.C. §1983, Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301, and Title II ofthe Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., to secure declaratory and injunctive relief for the unlawful deprivation of rights, privileges and immunities secured by the Constitution and laws of the United States. Plaintiff citizens and voters of Michigan will be harmed by the discriminatory and burdensome provisions
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of Michigan's 2015 Public Act 268 (Exhibit 1) which eliminated the ability ofMichigan voters to cast a straight party vote if they so chose, an option which they had enjoyed for 125 years and which at least half of them had used in recent elections. The elimination of straight-party (or straight ticket) voting, relied upon by millions of Michigan voters, will make it umeasonably harder for those voters to vote. This elimination will result in longer lines, more congestion and more confusion in polling places on Election Day as well as confusion among absentee voters, further umeasonably burdening the right to vote of all voters in Michigan, and will consequently disenfranchise tens of thousands of voters. Lines and waiting times will increase even more in jurisdictions with larger minority populations, as minority voters have used the straight pmiy voting option at a much higher rate. Plaintiff voters will be denied equal protection of the law and the equal right to vote, in violation of the Fourteenth Amendment of the United States Constitution. Further, 2015 PA 268 will more detrimentally affect African-American voters, reducing their opportunity more than that of white voters to participate in the electoral process and to elect representatives of their choice, in denial or abridgement of their right to vote under §2 ofthe Voting Rights Act. Finally, 2015 PA 268 will discriminate against voters with disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132. Plaintiffs seek declaratory and preliminary and permanent injunctive relief preventing Defendant from implementing the provisions of 2015 PA 268 abolishing straight party voting.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1343(a)(3) and 1357; and 42 U.S.C. §§ 1983 and 1988.
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3. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
4. Venue is this district is proper pursuant to 28 U.S.C. § 1391(b). 5. This action is timely brought, 2015 PA 268 having been signed into law on January 5, 2016, and it will ban straight party voting beginning with the November 8, 2016 general election.
PARTIES 6. Plaintiff Michigan State A. Philip Randolph Institute (MI APRI) is the Michigan division of the national A. Philip Randolph Institute, the senior constituency group of the AFLCIO dedicated to advancing racial equality and economic justice. Founded by A. Philip Randolph and Bayard Rustin, APRI grew out of the legacy of African-American trade unionists' advocacy for civil rights and the passage of the federal Voting Rights Act and it continues to advocate for social, political and economic justice for all working Americans. MI APRI is a statewide organization with 10 local chapters across the state: Battle Creek, Detroit Metro, Detroit Downriver, Flint, Grand Rapids, Kalamazoo, Lansing, Muskegon, Saginaw and Southwest (Benton Harbor). MI APRI has members who are registered voters across Michigan. MI APRI works to increase access to the polls, voter registration and voter education, particularly among working class African Americans. 7. Plaintiff Mary Lansdown is a 77 year old African-American, a life-long resident of Flint and a registered voter in Flint. She has been active in her community for many, many years. She is active in the AARP Flint Chapter and the Genesee County Community Action and is currently President of the Flint Chapter of the A. Philip Randolph Institute. She is active in
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her church. One of the things they are most involved with is trying to get people to vote. They do voter registration, GOTV (Get Out The Vote) drives and voter education.
8. Plaintiff Erin Comartin is a registered voter in West Bloomfield Township in Oakland County. She is white, a professor of social work at Oakland University and a social justice activist interested in voting rights. She is concerned about the impact of 2015 PA 268 on her rights and the rights of others to vote.
9. PlaintiffDion Williams is a registered voter in Detroit. An African-American, he uses the straight party option and is active in Detroit elections. He is concerned about the impact of 2015 PA 268 on his rights and the rights of others to vote.
10. Defendant Ruth Johnson is the Michigan Secretary of State, Michigan's "chief election officer," M.C.L. §168.21, and is being sued in her official capacity.
FACTUAL ALLEGATIONS The Administration of Elections in Michigan 11. Michigan has the most decentralized election system in the country. Administration of elections is divided among 1,602 county, city, township and village clerks. The Secretary of State is the "chief election officer," with "supervisory control" over these local officials. M.C.L. §168.21. 12. Michigan's 83 county clerks have limited responsibilities with regard to elections. They provide advice to the city and township clerks in their counties, are responsible for the printing of ballots, provide training to election inspectors in some of the jurisdictions, program all of the voting equipment used in all county jurisdictions, and, in some elections, canvass the votes.
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13. Cities, townships and villages, pa1iicularly cities and townships, are responsible for the administration and supervision of all elections, and for all of the expenses of those elections, including purchasing voting booths, ballot tabulators, and all other supplies, hiring election inspectors, and in the larger jurisdictions training them, obtaining space for thousands of polling places and paying the cost where necessary, tabulating millions of ballots and, in some elections, canvassing the results, among many other functions.
14. The financial and personnel resources available to counties, cities, townships and villages to administer elections vary considerably, as those jurisdictions range from very affluent communities to financially distressed ones, including Detroit, only recently emerging from bankruptcy, and communities such as Flint and Pontiac which are under such financial stress that the State of Michigan has intervened in their management. See City of Detroit, U.S. Bankruptcy Comi, E.D. Mich. No. 13-53846; Michigan Dept. of Treasury, Local Government Fiscal Health, http://www.michigan.gov/documents/treasury/EM-EFM Appointment History 2-1216 514604 7.pdf (detailing history of all cities and school districts found to suffer financial distress and subject to state intervention).
15. To vote at the polls on Election Day, Michigan voters must provide a valid photo ID if they have one and complete and sign a paper application showing their residence address. M.C.L. §168.523(1 ). Upon confirmation that they are registered to vote in that precinct, id. (2), (3), they are issued an optical scan ballot and directed to a voting booth where they vote secretly. When they have finished voting their ballot by filling in the ovals or completing the arrows (depending on the type of voting tabulators used), they are directed to the single ballot tabulator for their precinct where they inse1i their ballot for counting. If they have made an error which the tabulator is programmed to catch, such as overvoting for an office (casting more than the
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permissible votes for that office), the tabulator rejects the ballot, giving the voter an opportunity to correct this error.
16. According to a national study, Michigan already has the 6th longest average waiting time to vote in the country- nearly 20 minutes. See Stewart, "Managing Polling Place Resources," Caltech/MIT Voting Technology Project at 6 & Appendix (2012) (copy attached as Exhibit 2). This study is "highly recommend[ed]" to Michigan local clerks by Christopher Thomas, longtime Director ofthe State's Bureau of Elections. See Exhibit 3,
17. According to the same national study, minority voters wait twice as long on average as white voters to vote, and voters in densely populated areas wait, on average, 3 times longer to vote than voters in less densely populated areas. Exhibit 2 at 7-8. Michigan's experience mirrors or exceeds these national averages. Presidential election years have seen waiting times
as long as 2Yz to 5 hours in Detroit, 4 hours in Grand Rapids and over an hour in Ann Arbor
according to media reports [collected as Exhibit 4]. A representative of Defendant Johnson
acknowledged a 2Yz hour wait at a Detroit polling location in 2008. See id.
18. In January, 2014, a bipartisan commission, appointed by President Obama and cochaired by Robert F. Bauer, Counsel to the Obama 2102 campaign, and Benjamin L. Ginsberg, Counsel to the Romney 2012 campaign, issued its report, "The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration." Christopher Thomas, Director of the Bureau of Elections in the office of the Michigan Secretary of State, was a member of this commission. (Exhibit 5)
19. The Report set forth numerous statutory changes and improved practices designed to improve the voting experience and reduce the length of lines so that no voter would need to wait
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longer than half an hour to vote. (Exhibit 5, at 6) Michigan has adopted none of these recommendations for election improvement.
The Long Michigan Ballot 20. Michigan voters directly elect over 19,000 federal, state and local officials, see Citizens Research Council ofMichigan, "The Long Ballot in Michigan" (1984) at 1, and also have the right to vote on state and local ballot questions, see Mich. Canst. 1963, Art. II, §9; Art. XII. 21. For these reasons all jurisdictions in Michigan have long ballots and the largest jurisdictions in the largest counties have the longest ballots because of the number ofjudicial offices on which citizens vote. For example, in Detroit in Wayne County voters in 2016 will be voting on 37 judicial offices. In Houghton in Houghton County, voters will be voting on only 4 judicial offices. 22. Michigan ballots are 18-22" long and 8-9%" wide, accommodating 3 columns of offices and ballot questions on both sides. It is very common for both sides to be filled, see, e.g., Exhibits 6-8 attached hereto, and in 2012 the City of Detroit had a ballot of2 full2-sided sheets, attached hereto as Exhibit 9.
Straight Party Voting in Michigan, 1892-2016 23. Since 1891, Michigan voters have had the option to vote for all of the candidates of a political party in partisan general elections by making a single selection at the top of their ballot, known as straight ticket or straight party voting. No voter is required to use it and a voter can override that choice in any given race and vote a so-called "mixed ticket" simply by voting for a
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2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 8 of 24 Pg ID 8 candidate from another party or an independent candidate. See 1891 PA 190, §14, codified in M.C.L. §§ 168.736c, 168.782b, 168.795c, 168.803 and 168.804. This is how the straight pmiy ticket voting option appears at the top of Michigan general election ballots:
TREASURER
Vote for nm more than i
REGENT OF TtiE UNIVERSiTY OF MICHIGAN
Vote tor..not more than 2
24. Straight pmiy voting has been a fixture in Michigan elections. It predates other wellestablished election procedures such as primary elections, compare 1891 PA 190 § 10 (all candidates nominated at political party conventions) with 1909 PA 281 (establishing primary
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elections in certain situations), and absentee voting, see 1915 PA 270 (first establishing right of certain voters to vote by absentee ballot).
25. Beginning in 1892, tens of millions ofMichigan voters have used the straight party voting option without complaints or problems. It shortened lines and eased congestion in polling places on Election Day by allowing voters who chose to use it to vote the partisan section of their ballot more quickly with one mark instead of 18 to 32. It allowed absentee voters to complete their ballots more quickly with one mark instead of 18 to 32. It saved money in election administration.
26. In 1964 the Legislature attempted to abolish the right to straight party voting by enacting 1964 PA 240. Michigan voters exercised their State Constitutional right to referendum and rejected PA 240 by a margin of 1,515,875 (66%) to 795,546 (34%) at the November, 1964 General Election.
27. After 1964 tens of millions of Michigan voters continued to use the straight party voting option without complaints or problems. It continued to shotien lines and ease congestion in polling places, and to allow absentee voters to complete their ballots more quickly. It saved money in election administration.
28. In 2001 the Legislature ignored the will of the voters and again attempted to abolish the straight ticket voting option by enacting 2001 PA 269. Michigan voters again exercised their State Constitutional right of referendum and rejected PA 269 by a margin of 1,775,043 (60%) to 1,199,236 (40%) at the November, 2002 General Election.
29. Since 2002 millions of Michigan voters continued to use the straight party voting option without complaints or problems. It continued to shotien lines and ease congestion in
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polling places, and to allow absentee voters to complete their ballots more quickly. It saved money in election administration.
30. In Michigan United Conservation Clubs v. Secretary of State, 464 Mich. 359 (2001), the Michigan Supreme Court effectively abolished the State Constitutional right of referendum, Mich. Const. 1963, Art. II, § 9, rejecting the longstanding interpretive principle that the right had to be construed so as to preclude legislative evasion or parry, and holding that the Legislature could evade and parry a referendum by simply attaching any appropriation to a bill.
31. In December, 2015 the Legislature again ignored the will of the voters and again abolished the straight party voting option by enacting 2015 PA 268. (Exhibit 1) Michigan voters were unable to exercise their State Constitutional right of referendum to reject PA 268, as they had previously rejected straight party voting bans, because the Legislature added an appropriation to PA 268, thereby blocking a referendum.
32. Currently, approximately 50% of all Michigan voters use the straight party voting option and 75-80% of African-American voters use it. See ExhibitlO, Kurt Metzger Expert Report [hereinafter "Metzger Report"]; Exhibit 13 at 3.
33. Absent the declaratory and injunctive relief sought here, 2015 PA 268 will eliminate the voters' ability to cast a straight party vote beginning with the general election on November 8, 2016. At that election, for the first time in 125 years, the millions of Michigan voters who have regularly chosen to vote straight party will no longer have the ability to cast a straight party vote on the pmiisan section of the ballot.
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Legislative History of 20 15 PA 268
34. On a handful of session days during the last few weeks of the 2015 legislative session, the Michigan Legislature took rapid action, with little public input, to abolish Michigan voters' 125 year-old option to cast a straight party vote.
35. Senate Bill13 abolishing straight party voting was first introduced in the Senate on January 20, 2015. No action occmTed for nearly ten (10) months. (Michigan Legislature record of actions on SB 13, Exhibit 11.)
36. On November 10, 2015, a Senate committee voted SB13 out in the morning and the full Senate passed it that afternoon. According to the Senate Legislative Analysis, SB13, November 10, 2015 (Exhibit 12), the Department of State said that the elimination of straight ticket voting could "cause an increase in the time it takes to vote due to voters' reading the new instructions as well as having to mark their vote for each candidate. . . As a result, it could become necessary for local units of government to purchase additional voting booths." At 4. Amendments which would have eased congestion in polling places by allowing early voting and no reason absentee voting were rejected. The Legislature adjourned that same day for its 3-week hunting season and Thanksgiving break.
37. A House committee took up SB13 on December 3, 2015, and again on December 8, 2015, when the Legislature reconvened after the weekend and voted SB13 out that day. Amendments were again rejected. The next day the full House passed SB 13, linking it to legislation allowing no-reason absentee voting. See Exhibit 11.
38. On December 16, 2015, the Senate, after locking down the Senate and barring Senators from leaving the chamber under penalty of atTest, rejected linking SB 13 to no-reason
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absentee voting. The House concurred that same day and the bill was sent to the Governor for his signature which occurred on January 5, 2016, and SB13 was enrolled as 2015 PA 268.
39. SB13 was opposed by The Michigan Association ofMunicipal Clerks, The Michigan Association of County Clerks, and The Michigan Townships Association, among others. The Secretary of State was "neutral." House Legislative Analysis, SB 13, December 9, 2015. (Exhibit 13 at 6)
40. According to the House Legislative Analysis, "Proponents of this bill believe that eliminating the option to vote straight-ticket will encourage voters to vote more deliberately." (Exhibit 13 at 2)
41. According to the House Legislative Analysis, "City and county clerks testified that the average wait time to vote in Michigan is already 22 minutes, and that this measure could double that wait." Clerks also testified that the number of spoiled ballots would increase, causing still longer lines and more frustration. (Exhibit 13 at 5).
42. Clerks testified before the Legislature that the bill would have a disproportionately negative impact on minority communities, and particularly on African-American voters. (Exhibit 13 at 5) Not a single African-American member of the House or Senate voted in favor of SB 13.
43. While eliminating the option of straight party voting, the Legislature did not eliminate the provision in the Michigan election law, M.C.L. § 168.684, which requires the printing of pmiy vignettes on the ballot.
44. The Michigan Bureau of Elections has directed the county clerks to print party vignettes across the top of the ballot, as shown here:
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OFFICIAL BALLOT General Election Tuesday, November X, 20XX Sample County, Michigan Jurisdiction Name, Precinct Number
.a INFORMATION ONLY·· PARTIES WITH BALLOT ACCESS --INFORMATION ONLY .a

The following Political Parties are approved to appear:

Republican

Democratic

~
Ll111UH~JAN
Libertarian

U.S. Taxpayers

Green

Natural Law

.a VOTING SECTION BEGINS BELOW .a

PARTISAN SECTION

II

CONGRESSIONAL

II

I

PRESIDENTIAL

I

REPRESENTATIVE IN CONGRESS

ELECTORS OF PRESIDENT AND VICE-PRESIDENT

1st DISTRICT Vote for not more than 1

OF THE UNITED STATES Vote for not more than 1
Presidential Candidate C)
Vice Presidential Candidate
Republican
Presidential Candidate 0
Vice Presidential Candidate
Democratic
Presidential Candidate 0
Vice Presidential Candidate
Libertarian
Presidential Candidate 0 v;.,,. Pr<><:irlAnti~l r:~nrlirl~t ..

Candidate C! ReQublican · -•
Candidate 0 Democratic
Candidate 0 Green
0

I

LEGISLATIVE

I

REPRESENTATIVE IN STATE LEGISLATURE 1st DISTRICT
Vote for not more than 1

STATE BOARDS
REGENT OF THE UNIVERSITY OF MICHIGAN
Vote for not more than 2
Candidate C)
Reeublican
Candidate C) Re~ubfican
Candidate CJ Democratic
Candidate C:)
Democratic ·-
Candidate (_)
Green
Candidate 0
Green
0
(~

The Adverse Effects of Eliminating Straight Party Voting Generally 45. On and before November 8, 2016, and at general elections thereafter, millions of Michigan voters who previously exercised the option to cast a straight party vote on an absentee ballot or at the polls will be denied its use and confused by its absence. 46. Straight party voting helps voters cope with the long Michigan ballot, see Paragraphs 20-22 supra. Without it, voting the entire ballot will become more difficult and time-consuming, adding to congestion, longer lines, and longer waiting times in polling places. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope, and Mary Lansdown, collected at Exhibit 14.)

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47. The confusion resulting from the elimination of straight party voting will be exacerbated by the printing of party vignettes across the top of the ballot, as shown in ~44, above, which will serve no purpose but to confuse the voter.
48. County clerks reviewing the new ballot format stated that this was certain to cause great confusion and that they expect voters, used to being able to vote straight party, will circle the patiy they want or otherwise mark it, as they will see no other reason for displaying the vignettes on the ballot. (Exhibit 14, Declaration of Joseph Rozell ~18; Exhibit 15, May 23,2016 Gangwer Report)
49. The elimination of straight party voting will result in more voting errors, more spoiled ballots, and more requests for assistance from election officials and/or from friends or family, all resulting in more delays and increased anger and frustration. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown)
50. Michigan already has the 6th longest average waiting time to vote in the countrynearly 20 minutes--and many urban and African-American voters wait in line for hours to vote. See Paragraphs 16-17 supra. On November 8, 2016, and at general elections thereafter, waiting time will increase and lines will lengthen because millions of voters, deprived of the ability to cast a straight party vote, will take longer to vote their ballot than previously. (Declarations of Joseph Rozell, Daniel A. Baxter and Chris Swope)
51. For the November 8, 2016, election, the State ofMichigan and county, city and township clerks will have to incur the expense of redesigning ballots to eliminate the straight party voting option.
52. On and before November 8, 2016, and at general elections thereafter city and township clerks who administer Michigan's elections will have to spend additional funds to
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educate voters about the lack of a straight party voting option, to hire additional staff, to provide extra training to the existing and additional staff, and to purchase additional voting equipment and supplies in efforts to ameliorate the congestion and longer lines created by the lack of a straight party voting option. Nevertheless, election officials and others do not anticipate that their efforts will be able to overcome the numerous difficulties created by the abolition of straight party voting. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown, Exhibit 14)
53. Clerks testified before the Legislature that they would need an estimated $30 million for equipment alone to address the impact ofPA 268. (Exhibit 13 at 5) The final bill included an appropriation of only $5 million"to purchase voting equipment to implement the elimination of straight party ticket voting." See 2015 PA 268, § 795c(2). However, the State of Michigan has advised local election officials that the $5 million will not be used to offset the costs of eliminating straight party voting. (Declaration of Joseph A. Rozell) In fact, the entire cost of attempting to address the impact of eliminating straight party voting will be borne by the cities and townships.
The Disproportionate Impact on African-American Voters of Eliminating Straight Party Voting 54. The adverse effects of eliminating straight party voting will be imposed
disproportionately on African-American voters and in polling places that serve predominantly African-American voters because African-American voters disproportionately utilize straight party voting. (Metzger Report, Exhibit 10, pp. 1, 9-12).
55. African-Americans in Michigan have long endured illegal discrimination in such areas as education, employment and housing. See, e.g., Sipes v. McGhee, 334 U.S. 1 (1948)
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(housing); Bradley v Milliken, 418 U.S. 717 (1974); (education); Davis v. School District of City ofPontiac, 443 F.2d 573 (6th Cir., 1971), ceti. denied, 404 U.S. 913 (1971) (education); Stamps v. Detroit Edison, 365 F. Supp. 87 (E.D. Mich., 1973) (employment); Garrett v. City of Hamtramck, 335 F. Supp. 16 (E.D. Mich., 1971) (housing). African-Americans in Michigan suffer from higher poverty and unemployment rates, and lower income and education levels than whites. See Metzger Repmi (Exhibit 10).
56. Political campaigns in Michigan have been characterized by covert and subtle racial appeals including discriminatory campaign tactics designed to discourage the ability of AfricanAmericans to participate in the political process. For example:
a. On August 9, 2012 the Finance Chair of the Republican National Committee and former Michigan Republican Party Chair (a 2016 candidate for University of Michigan Regent) Ron Weiser spoke to a Republican Party meeting in suburban Detroit about Detroit's AfricanAmerican voters:
"Secondly, no Coleman Young machine. No Kwarne Kilpatrick machine. There is no Dave Bing machine. There's no machine to go to the pool halls and the barbershops and put those people on buses and then bus them from precinct to precinct where they vote multiple times. And there's no machine to get 'em to stop playing pool and drinking beer in the pool hall. And it does make a difference.
"Obama has hired a lot of people to go help him get that vote out. But if you're not from Detroit, the places where those pool halls and barbershops are, you're not going to be going at 6:30 in November. Not without a side arm." Exhibit 16.
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b. On July 16, 2004 Republican State Representative John Pappageorge told the Detroit Free Press that "[i]fwe do not suppress the Detroit vote, we're going to have a tough time this election." Exhibit 17. 57. Elected officials in Michigan demonstrate a lack of responsiveness to the interests of African-American communities. See, e.g, Flint Water Advisory Task Force, "Final Report" at 54 (March, 2016) ("The facts of the Flint water crisis lead us to the inescapable conclusion that this is a case of environmental injustice. Flint residents, who are majority Black or African American and among the most impoverished of any metropolitan area in the United States, did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities. Moreover, by virtue of their being subject to emergency management, Flint residents were not provided equal access to, and meaningful involvement in, the govemment decision-making process."). 58. There is a significant history and ongoing pattem of discrimination in education, housing and employment in Michigan which causes African-Americans as a group to be less well-educated, less well-housed, lower-paid, and more likely to live in poverty than their white counterparts. See Metzger Report (Exhibit 10). Past and ongoing discrimination in these areas causes higher rates of poverty amongst African-Americans. See id. 59. There is a significant educational achievement difference between non-Hispanic whites and African-Americans in Michigan. The statistics for persons 25 and older in 2014 showed the following: 47% of African-Americans compared to 38.5% of whites had only a high
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school education or less; 16.9% of African-Americans compared to 28.4% ofwhites had a bachelor's degree or more. (Metzger Report, Exhibit 10, at pp. 13-14, 21)
60. Studies have established a direct correlation between low educational achievement, low income, and low literacy levels. According to the 2003 report (the most recent available) on adult literacy, by the National Center on Educational Statistics, 12% of the adults in Wayne County lacked basic literacy skills. https://nces.ed.gov/naal/estimates/StatesEstimates.aspx.
61. Current and past discrimination hinder the ability of African-American voters to participate effectively in the political process. African-Americans register to vote and vote at lower rates than whites. (Metzger Report, Exhibit 10).
COUNT I- VIOLATION OF EQUAL PROTECTION UNDER 14TH AMENDMENT
62. Plaintiffs incorporate by reference paragraphs 1 - 61 hereof as if set forth word for word.
63. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits states from denying to any person the "equal protection of the laws." U.S. Canst. amend XIV, § 1.
64. The Fourteenth Amendment prohibits states from burdening the fundamental right to vote and the Supreme Court has set out the analysis to be applied:
{A} court considering a challenge to a state election law must weigh "the character and magnitude of the assetied injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiffs rights."
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Burdick v. Takushi, 504 U.S. 428,434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). "This standard is sufficiently flexible to accommodate the complexities of state election regulations while also protecting the fundamental importance of the right to vote." Obama for America v. Husted, 697 F.3d 423, 429 (6th Cir., 2012).
65. Plaintiffs' right to vote is heavily burdened by the arbitrary and irrational abolition of the option of straight party voting after 125 years without complaint or problem. Millions of Michigan voters have relied upon this method of voting and will be denied the opportunity to continue to do so. As a result of the abolition of straight party voting, lines, congestion and confusion will increase at polling places, affecting all voters, but affecting African-American voters more. (Exhibit 14, Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown, and Metzger Report)
66. Long lines at polling places discourage voting, reduce voter confidence in elections and impose other costs on voters. See Stewart, supra, at 1, 11-12 (Exhibit 2).
67. The abolition of straight party voting serves no state interest: it will increase the cost of elections, not reduce it; it will increase voter confusion; not reduce it; it will increase congestion and long lines at the polling places, not reduce them; it will decrease voter participation, not increase it and it will reduce voter confidence in elections, not increase it.
68. The abolition of straight party voting will burden the fundamental right to vote of all Michigan voters in violation of the Fourteenth Amendment.
69. The abolition of straight party voting will disproportionately burden the fundamental right to vote of African-American voters, in violation of the Fourteenth Amendment.
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COUNT II- VIOLATION OF THE VOTING RIGHTS ACT§ 2
70. Plaintiffs incorporate by reference paragraphs 1-69 hereof as if set fmih word for word.
71. Section 2 ofthe Voting Rights Act of 1965, 52 U.S.C. § 10301(a), provides:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. 72. African-American citizens in Michigan, as a group, disproportionately use straight pmiy voting more than white citizens. (Metzger Report, Exhibit 10, pp. 9-1 0).
73. African-American citizens in Michigan, as a group, have, as a result of discrimination in housing, employment and education, a significant educational achievement deficit. More African-Americans have only a high school degree or less. Fewer African Americans have a bachelor's degree or more. (See Metzger Report, Exhibit 10, pp. 13-14, 21)
74. The elimination of straight ticket voting will cause disproportionately longer lines and waiting times for African-American voters than for white voters both because the disproportionately higher rate of straight pmiy voting which will result in more people taking more time to vote, and also because low literacy, associated with the educational achievement gap and the other factors cited above, will cause an even greater increase in the time to vote among African-American voters.
75. 2015 PA 268' s abolition of straight party voting will have the effect of suppressing the votes of African-American voters in violation of Section 2 ofthe Voting Rights Act, 52 U.S.C. § 10301(a).
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2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 21 of 24 Pg ID 21
76. 2015 PA 268' s abolition of straight pmiy voting will result in the denial or abridgement of the right to vote of the individual Plaintiffs and others on account of race or color in violation of Section 2 ofthe Voting Rights Act, 52 U.S.C. § 10301(a).
77. The abolition of straight party voting will interact with social and historical conditions -which are themselves largely due to discrimination in areas such as education, employment, housing, health services, and voting - to cause an inequality in the opportunities enjoyed by African-American and white voters to elect their preferred representatives.
78. Under the totality of the circumstances, the abolition of straight party voting will result in the dilution of African-American voting strength and the denial of African-Americans' fundamental right to vote in violation of §2 of the Voting Rights Act.
COUNT III- VIOLATION OF AMERICANS WITH DISABILITIES ACT 79. Plaintiffs incorporate by reference paragraphs 1-78 hereof as if set forth word for word. 80. The Americans with Disabilities Act, 42 U.S.C. § 12132, prohibits discrimination against persons with disabilities in the provision of "services, programs or activities of a public entity," including access to a polling place for the purposes of voting and voting equipment which permits them to vote notwithstanding their disability. 81. In Michigan, all polling places are required to have an AutoMARK Voter Assist Terminal for use by voters with disabilities. The AutoMARK "operates like an electronic ink pen. It simply marks the ballot with the voter's choices but does not tally the votes. Once the ballot is marked, it is counted in exactly the same fashion as all other ballots. The AutoMARK
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2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 22 of 24 Pg ID 22
features a touch screen, a keypad marked with Braille, and the oppmiunity for voters to use their personal sip-puff device, a stylus or a footpad to mark their ballots. The AutoMARK is wheelchair-accessible and is equipped with headphones so that voters may hear the ballot read aloud to them if they wish." Michigan Secretary of State, "The Rights of Voters with Disabilities" at 2.
82. When they work properly (and many times they do not) the AutoMARK is a very time-consuming way to cast a ballot. Without straight pmiy voting voters with disabilities will spend even more time casting a ballot making waiting times and lines for those devices longer. See Declaration of Daniel A. Baxter.
83. On November 8, 2016, and at general elections thereafter, by abolishing straight party voting 2015 PA 268 will require millions of voters to take longer to complete their ballot leading to longer lines and more congestion at polling places. Longer lines and waiting times will create a hardship for voters with disabilities for whom walking or standing in line is a burden.
84. Voters with disabilities will be denied their right to vote by the longer lines and longer time to cast a ballot caused by the abolition of straight party voting, in violation of the Americans with Disabilities Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask that the Court: 1. Declare that the challenged provisions of 2015 PA 268 abolishing straight party voting:
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2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 23 of 24 Pg ID 23
a. Violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by unreasonably burdening the right to vote of all Michigan citizens;
b. Violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by unreasonably and disproportionately burdening the right to vote of African-American citizens;
c. Violate Section 2 of the Voting Rights Act of 1965 by denying and abridging the right to vote of African-Americans because of their race and color; and
d. Violate the Americans with Disabilities Act. 2. Declare that the rights and privileges of Plaintiffs and other citizens will be irreparably
harmed without the intervention of this Court to secure those rights for the exercise thereof in a timely and meaningful manner; and 3. Enjoin preliminarily and permanently the Defendant, her agents, officers and employees, and all persons acting in concert or cooperation with her from enforcing or giving any effect to the provisions of 2015 PA 268 that prohibit straight party voting; and 4. Award Plaintiffs their costs, disbursements and reasonable attorneys' and experts' fees incurred in bringing this action pursuant to 42 U.S.C. §§ 1988 and 52 U.S.C. § 10310(e); and 5. Grant such other relief as the Court deems just and proper.
Respectfully submitted, GOODMAN ACKER, P.C. 23

2:16-cv-11844-GAD-MKM Doc # 1 Filed 05/24/16 Pg 24 of 24 Pg ID 24

Dated: May 24, 2016

Mark Brewer (P35661) Attorneys for Plaintiffs 17000 W. Ten Mile Road, 2nd Floor Southfield, MI 48075 (248) 483-5000 mbrewer@goodmanacker.com
SACHS WALDMAN, P.C.
Mary Ellen Gurewitz (P25724) 2211 E. Jefferson Avenue, Detroit, MI 48207 (313) 965-3464 megurewitz@sachswaldman.com

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN,
ERIN COMARTIN, DION WILLIAMS, and COMMON CAUSE,
Plaintiffs,
v.
RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

Case No. 16-cv-11844
UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant. /

AMENDED OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION [4]

I. INTRODUCTION

Plaintiffs Mary Lansdown, Erin Comartin, Dion Williams, and the Michigan

State A. Philip Randolph Institute (“Plaintiffs”) commenced this action against the Michigan Secretary of State, Ruth Johnson (“Defendant”) on May 24, 2016.1 See

Dkt. No. 1. Plaintiffs allege that the passage of Public Act 268 (“P.A. 268”)

impermissibly burdens the right to vote under the Equal Protection Clause of the

1Plaintiffs filed an Amended Complaint on June 1, 2016. Dkt. No. 9. However, Plaintiffs inadvertently filed the Amended Complaint as an Answer. The Court, finding that Plaintiffs may amend their complaint within 21 days after serving it, will consider the June 1, 2016 filing as Plaintiffs’ First Amended Complaint. FED. R. CIV. P. 15(a)(1)(A).

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Fourteenth Amendment of the U.S. Constitution, and the Voting Rights Act, 52 U.S.C. § 10301.
On May 27, 2016, Plaintiffs filed a Motion for a Preliminary Injunction, to prevent the enforcement of P.A. 268. A hearing was held on July 14, 2016 at 11:00 a.m. The matter is fully briefed. For the reasons discussed below, the Court will GRANT the preliminary injunction.
II. BACKGROUND The current litigation centers on legislation to ban “straight-party voting” on Michigan ballots. Straight-party voting allows citizens to vote for all of the partisan candidates of a particular party by filling a single bubble on their ballot. The most common reasoning behind the use of straight-party voting is that it reduces the amount of time needed to complete a ballot. Dkt. No. 4 at 19 (Pg. ID No. 336). Voters in Michigan have had the option to cast a straight-party vote for the last 125 years. Complaint, ¶ 23. However, there have been several attempts to abolish the practice. First in 1964, the Michigan Legislature enacted P.A. 240. However, during the November 1964 election, the citizens rejected P.A. 240 via referendum. In 2001, the Legislature tried again with P.A. 269. However, the law was again struck down by voters. Most recently, on January 20, 2015, Senator Marty Knollenberg introduced Senate Bill 13 to eliminate straight-party voting in Michigan. The Legislature
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passed P.A. 268 on December 16, 2015. On January 5, 2016, Governor Snyder signed P.A. 268 into law. P.A. 268 will go into effect for the first time in the November 2016 U.S. Presidential Election. Attached to P.A. 268 is an appropriation, thereby blocking a referendum. See Michigan United Conservation Clubs v. Secretary of State, 464 Mich. 359 (2001).
The new ballots for the 2016 election look identical to the 2014 ballots, except that the section for straight-party voting has been removed. Critically however, the new 2016 ballots still contain vignettes of the major political parties, thus raising further concerns about voter confusion. Complaint, ¶ 3.
There is no dispute that straight-party voting helps to save time in the voting process. Several elections officials in Oakland County, Detroit and Lansing have filed affidavits asserting that the elimination of straight-party voting will increase line lengths and waiting times for voters. Complaint (Exhibit 14). They claim they are most concerned with wait times in urban settings, predominantly populated by African-American voters.
Kurt Metzger, a Regional Information Specialist with the U.S. Census Bureau in Detroit, Michigan, conducted an analysis (the “Metzger Report”) of the likely impact of P.A. 268 on African-American and white voters. See Complaint (Exhibit 10). In addition, the Metzger Report also provided an analysis of socioeconomic, housing and voting data for Michigan. Id.
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Metzger acquired the voting results by precinct for nine of the largest

counties in Michigan for which straight-party voting data were available. These

counties included Genesee, Ingham, Kalamazoo, Kent, Macomb, Muskegon,

Oakland, Saginaw and Wayne. Id. (Pg. ID No. 224). Metzger also used 2010

Census data on the racial/ethnic composition of the voting age population for all

communities within the nine counties. Id. The Metzger Report found that there was

a direct correlation between the use of straight-party voting within a community

and the African-American population within that community. Generally, as the

African-American population increases in a county, so does the use of straight-

party voting.

Within the county data, Metzger documented the voting patterns of each

city. Metzger found fifteen cities in Michigan with a straight-party voting rate of

about 65% or higher. Metzger Report, Appendix A. Of those fifteen cities, only

two, Hamtramck and Mount Morris, were majority white. Id. The five cities with

straight-party voting rates greater than 75%, were all majority African American.

Id.

City

Percent Black Percent Straight-Party Vote in 2014

Royal Oak Charter Township 95.6%

82.1%

Highland Park

93.1%

82.0%

Detroit City

82.3%

75.5%

Inkster City

70.8%

78.2%

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Flint City

53.4%

75.2%

Id. In fact, although the average straight-party voting rate in Michigan is about 50%, the straight-party voting rate in African-American majority districts was 67% in 2012, and 73.5% in 2014. Id.
From this finding, Metzger concluded that African-American voters were much more likely to use straight-party voting than white voters, and that P.A. 268 would have a larger impact on African-American populations than white ones. Id. (Pg. ID No. 231).

III. LEGAL STANDARD Temporary restraining orders and preliminary injunctions are extraordinary remedies designed to protect the status quo pending final resolution of a lawsuit. See University of Texas v. Camenisch, 451 U.S. 390 (1981); Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (finding that preliminary injunctive relief “is an extraordinary measure that has been characterized as ‘one of the most drastic tools in the arsenal of judicial remedies.’ ”). Whether to grant such relief is a matter within the discretion of the district court. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007). The same factors are considered in determining whether to grant a request for either a temporary restraining order or a preliminary injunction. See Sandison v. Michigan High School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir. 1995).
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The four factors that must be balanced and considered before the court may issue a temporary restraining order or preliminary injunction include: (1) the likelihood of the plaintiff’s success on the merits; (2) whether the plaintiff will suffer irreparable injury without the injunction; (3) the harm to others which will occur if the injunction is granted; and (4) whether the injunction would serve the public interest. Certified Restoration, 511 F.3d at 542; In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989).
“None of these factors, standing alone, is a prerequisite to relief; rather, the court should balance them.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). Nevertheless, in this Circuit “a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000).
IV. DISCUSSION In response to Plaintiffs’ motion, the Defendant makes several arguments for its denial. First, the Defendant argues that the doctrine of laches should apply. Second, the Defendant argues that the Court should abstain from ruling on this matter under the Burford doctrine. Third, the Defendant argues that there is no federal subject matter jurisdiction. Fourth, the Defendant argues that the Plaintiffs lack standing to bring their claims. Finally, the Defendant argues that the four
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factors considered when analyzing a motion for preliminary injunction favor the Defendant. The Court shall address each argument in turn.
A. Laches Defendant argues that Plaintiffs’ claim should be dismissed under the
doctrine of laches. This argument is without merit. P.A. 268 was signed into law on January 5, 2016. Plaintiffs brought this lawsuit on May 24, 2016 and filed a Motion for Preliminary Injunction three days later. The election does not take place until November. Defendant has failed to show that any actions have been taken that would justify barring this claim under the doctrine of laches. Defendant has also failed to produce evidence that the Plaintiffs purposefully delayed, or exhibited a lack of diligence. Accordingly, this argument fails. See Ohio State Conference of NAACP v. Husted, 768 F.3d 524, 538 (6th Cir. 2014) (“Husted II”); see also Ohio Organizing Collaborative v. Husted, No. 2:15-cv-1802, 2016 WL 3248030 at *12 (S.D. Ohio May 24, 2016).
B. The Burford Abstention Doctrine Defendant next argues that the Court should abstain from hearing the case
under the Burford doctrine. Dkt. No. 20 at 13 (Pg. ID No. 548). This argument is also without merit.
The Supreme Court has explained that “Burford abstention is appropriate where timely and adequate state-court review is available and (1) a case presents
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‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the case at bar,’ or (2) the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ ” Caudill v. Eubanks Farms, Inc., 301 F.3d 658, 660 (6th Cir. 2002) (quoting New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361 (1989)). The decision of whether to abstain is a matter of judicial discretion. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 718 (1996). The doctrine should be applied narrowly. Id. at 728.
The present matter does not involve a state law claim. Plaintiffs have only alleged federal claims. See Complaint, at 18–21 (Pg. ID No. 18–21). Moreover, federal review of similar cases has never been overly disruptive of state efforts to develop a coherent voting policy. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004); Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012); League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008). Moreover, “Burford abstention should be denied where constitutional violations are alleged,” as they are here. Warf v. Board of Elections of Green County, Ky., No. 1:08–CV–72–R, 2009 WL 530666, *3 (W.D. Ky. March 3, 2009). Accordingly, this argument fails.
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C. Federal Subject Matter Jurisdiction Defendant argues that there is no federal subject matter jurisdiction because
the U.S. Constitution authorizes the states to prescribe the time, places, and manner of holding elections. Dkt. No. 20 at 15–17 (Pg. ID No. 550–552). The Court disagrees. The states are authorized to regulate elections, but that authorization does not allow states to violate the Constitutional rights of citizens. The federal court clearly has jurisdiction to decide the issue of whether a state law unconstitutionally infringes on a citizen’s right to vote. See Sandusky, 387 F.3d at 574.
D. Standing “Before bringing a case in federal court, a plaintiff must establish standing to
do so.” Klein v. U.S. Dept. of Energy, 753 F.3d 576, 579 (6th Cir. 2014). The law of Article III standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. (citing Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1146 (2013)). “To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
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a. Injury-in-Fact “An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. (quoting Lujan, 504 U.S. at 560). “An allegation of future injury may suffice if the injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’ ” Id. (quoting Clapper, 133 S.Ct. at 1148). Defendant argues that Plaintiffs have not pled any concrete or particularized injuries. Dkt. No. 20 at 19 (Pg. ID No. 552). Defendant contends that “Plaintiffs raise only general grievances regarding what may occur to every voter in the State.” Id. Defendant also argues that “any alleged injury that the elimination of straight-party voting creates is pure speculation.” Dkt. No. 20 at 17 (Pg. ID No. 552). Therefore, Defendant contends the claim should be dismissed under Lance v. Coffman, 549 U.S. 437, 441 (2007). The Court disagrees. In Lance, four Colorado voters filed a complaint alleging that “Article V, § 44 of the Colorado Constitution . . . violated [the Elections Clause] of the U.S. Constitution by depriving the state legislature of its responsibility to draw congressional districts.” Id. The Supreme Court found that “[t]he only injury plaintiffs allege[d] is that the law—specifically the Elections Clause—[had] not been followed.” Id. at 442. The Lance court held that the Plaintiffs held “no particularized stake” in the litigation, and thus did not have standing.
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The allegations in this case are different. Plaintiffs have not alleged general grievances applicable to every voter in the state. Here, Plaintiffs allege that P.A. 268 will disproportionately impact African-Americans in urban areas in the form of longer wait times. Complaint at ¶ 54. Therefore, Plaintiffs Mary Lansdown and Dion Williams—who are African-American, and live in the predominantly African-American cities of Flint and Detroit, Michigan, respectively—do have a stake in the litigation, as the alleged harm would disproportionately impact them. Furthermore, Plaintiffs have submitted an expert report that corroborates these allegations. Therefore, the harms are not speculative.
Moreover, the fact that the alleged harm has yet to materialize is not dispositive in this case. “[C]ourts have continued to recognize that the increased risk of harm constitutes an injury sufficient to support standing.” Stewart v. Blackwell, 444 F.3d 843, 844 (6th Cir. 2006); see also Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997) (considering the merits of asbestos-related claims brought by a plaintiff who had yet to manifest symptoms asbestos-related disease).
In the voting context, the Sixth Circuit has recognized that voters can have standing based on an increased risk that their voting rights will be infringed. Sandusky, 387 F.3d at 574. In Sandusky, the Sixth Circuit held that the Sandusky County Democratic Party had standing to bring a claim on behalf of Michigan
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voters. The organization alleged that the Secretary of State’s directives regarding provisional ballots in Ohio elections violated the Help America Vote Act (“HAVA”). The Act allowed voters to cast provisional ballots in those instances where their names could not be located on the list of qualified voters. Id. at 569. The Secretary of State issued a directive that would prohibit voters from casting provisional votes unless the poll worker was able to confirm that the voter was eligible to vote in that specific context. Id. at 571. The plaintiffs argued that the directive violated the HAVA because the directive would allow “poll workers to withhold a provisional ballot from anyone who is not—according to the poll worker’s on-the-spot determination at the polling place—a resident of the precinct in which the would-be voter desires to cast a provisional ballot.” Id.
The Sixth Circuit held that failure to identify which specific voters that would be harmed was “understandable.” Id. (“ . . . by their nature, mistakes cannot be specifically identified in advance.”). That because Election Day is fixed, and because human error is likely inevitable, the issues raised were “real and imminent.” Id. at 574.
Here, the same logic applies. Plaintiffs have submitted testimony establishing that there is a substantial likelihood that wait times for voting would lengthen due to the adoption of P.A. 268. Furthermore, Plaintiffs have articulated
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which geographical and demographic populations are at greatest risk of suffering this harm. Therefore, Plaintiffs have alleged facts establishing injury-in-fact.
There does not appear to be a dispute that Plaintiffs’ harm would be redressed by the termination of P.A. 268. Accordingly, Plaintiffs have established all of the elements required for Article III standing.
b. Standing to Bring Claims under the Voting Rights Act Defendants argue that the Michigan State A. Philip Randolph Institute, as an institutional plaintiff, does not have standing to bring a Voting Rights Act claim, which grants a right of action to “aggrieved persons.” The argument asserts that because the Institute is not a person, it therefore does not have standing. This argument is without merit. Associations are able to bring claims under the Voting Rights Act on behalf of their members if their members would have standing to bring the claims themselves. Holder v. E.K. Hall, Sr., 512 U.S. 874 (1994) (deciding a Voting Rights Act claim, brought by an institutional plaintiff, on the merits). In this case, the Institute is bringing claims on behalf of its members. Some of the Institute’s members are African-American and would have standing to challenge P.A. 268. Accordingly, the Institute has standing to continue on the Voting Rights Act claim.
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c. Standing to Bring Claims under the Americans with Disabilities Act Defendant argues that Plaintiffs cannot bring the ADA claims because “none of the individual Plaintiffs claim to be an individual covered by the ADA.” Dkt. No. 20 at 19 (Pg. ID No. 554). Defendant is correct. The ADA prohibits discrimination against “qualified individuals with disabilities.” See 42 U.S.C. § 12132. A “qualified individual with a disability” is defined as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity 42 U.S.C. § 12131(2). An individual is “disabled” if the person (A) has or mental impairment that substantially limits one or more major life activities; (B) has a record of such an impairment; or (C) is regarded as having such an impairment. 42 U.S.C. § 12102(1). None of the listed Plaintiffs are described as having any disabilities as recognized by the ADA. See Complaint, at 3–4 (Pg. ID No. 3–4). Therefore, these claims aren’t likely to succeed unless the Plaintiffs can demonstrate that they are entitled to continue under third-party standing. A party seeking third-party standing must show that they have a “close relationship” with the person who possesses the right, and there is a “hindrance” to
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the possessor’s ability to protect his own interests. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). No facts have been pled to establish that either exist in the present case. Accordingly, it does not appear likely that Plaintiffs have standing for their ADA claims.
E. The Likelihood of Success on the Merits a. The Use of Metzger’s Expert Report
As a preliminary matter, the Court addresses the use of the Metzger Report as a part of this analysis. It is common in cases such as this for judges to use expert reports when hearing a motion for a preliminary injunction on a voting law. See Husted II, 768 F.3d at 533–34; see also Ohio Organizing Collaborative, 2016 WL 3248030 at *3–8. Typically in these cases, expert reports are submitted by both parties. Id. Here, only the Plaintiffs have submitted an expert report.
Plaintiffs submitted Metzger’s report with their Complaint on May 24, 2016. Dkt. No. 1 (Exhibit 10). They filed the present motion three days later on May 27, 2016. Dkt. No. 4. Defendants filed a Response on June 17, 2016, along with an Ex Parte Motion for Leave to File Excess Pages. See Dkt. Nos. 14, 15. Their final amended Response Brief was filed on June 28, 2016. The final Amended Reply Brief was not filed until July 6, 2016,2 forty-four days after the filing of the
2 Attached to the Reply Brief was the expert report of the Plaintiffs’ second expert witness, Dr. Theodore Allen, Ph.D. At the July 14, 2016 hearing, the Court ruled
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Complaint. Dkt. No. 21. At no point during those forty-four days did Defendant ever request leave of the Court to extend any deadlines or to hire an expert of their own. It was not until July 13, 2016, the day before the Court held a hearing on this matter, that Defendant made a request to conduct limited discovery. See Dkt. No. 22.
This motion has been pending for seven weeks. Time is of the essence. The election is less than four months away, and election officials need to have adequate opportunity to prepare. See Dkt. No. 20 (Thomas Affidavit at ¶ 10, Pg. ID No. 628) (“On information and belief, individuals responsible for programming, coding and printing ballots will begin setting ballots no later than 70 days prior to Election Day (by August 30, 2016), and some may begin as early as the date the results of the primary election are Certified by the County Board of Canvassers for locallevel candidates (by August 16, 2016 per MCL 168.822).”). The Defendant’s request to reopen discovery and to present a counter-expert was not made in a timely fashion. Therefore, the Defendant has waived the opportunity to submit an expert report for consideration on the Motion. The Court shall evaluate the Motion with the facts before it in the record.
that the report of Dr. Allen would not be taken into consideration because it was not filed with the original motion, and thus it was untimely.
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b. Equal Protection Claim “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Bush v. Gore, 531 U.S. 98, 104 (2000). Two aspects of “the manner of its exercise” warrant special attention: “[t]he Equal Protection Clause applies when a state either classifies voters in disparate ways or places restrictions on the right to vote.” Obama for America, 697 F.3d at 428 (citing League of Women Voters of Ohio, 548 F.3d at 478). “State regulations that do not treat similarly situated voters differently and do not burden the fundamental right to vote are assessed through rational basis review.” Husted II, 768 F.3d at 538.3 “On the other end of the spectrum, strict scrutiny applies to state regulations that impose ‘severe’ burdens on the fundamental right to vote.” Id. “For the majority of cases falling between these extremes, we apply the ‘flexible’ Anderson-Burdick balancing test.” Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012) (quoting Obama for America, 697 F.3d at 429). The law at issue does, as discussed below,
3 Husted II was later vacated by the Sixth Circuit when the United States Supreme Court stayed the decision pending a petition for writ of certiorari. The Sixth Circuit noted that the preliminary injunction that was the subject of the appeal was limited to the 2014 election, which no longer had any effect due to the Supreme Court’s stay. The parties later settled. Accordingly, Husted II is not binding, but due to the factual similarity, the Court considers Husted II as persuasive authority.
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to a certain extent burden the right to vote, although not severely. Therefore, the Court finds the Anderson-Burdick test to be appropriate.
The Anderson-Burdick test provides as follows: A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs' rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). “There is no ‘litmus test’ to separate valid from invalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and ‘make the “hard judgment” that our adversary system demands.’ ” Obama for America, 697 F.3d at 429 (quoting Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190 (2008)). “Even a minimal burden ‘must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.’ ” Husted II, 768 F.3d at 538 (quoting Crawford, 553 U.S. at 191).
1. The Asserted Injury P.A. 268 eliminates the straight-party voting option on ballots. Prior to the adoption of P.A. 268, voters could mark a single bubble to vote for all of the candidates affiliated with a particular party. With that option eliminated, voters
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would have to mark each individual bubble for the candidates that they wish to vote for.
Plaintiffs argue that the elimination of straight-party voting will burden all voters, and disproportionately harm African-American voters who are more likely to use straight-party voting. Plaintiffs contend that because voters will no longer be able to vote for partisan candidates by marking a single bubble, it will take voters longer to complete their ballots, thus causing longer wait times, and more congestion. Moreover, Plaintiffs contend that confusion about the ballot could lead to a disproportionate amount of African-American voters not having their votes counted.
The Court finds that P.A. 268 presents a disproportionate burden on African Americans’ right to vote. As discussed above, the Metzger Report shows that, among the most populous counties in Michigan, there are “extremely high” correlations between the size of the African-American voting population within a district, and the use of straight-party voting in that district. Complaint (Exhibit 10, Pg. ID No. 229–30). Accordingly, as Metzger concludes, the elimination of straight-party voting would likely have a larger impact on African-American voters.
Joseph Rozell, an officer in the Elections Division of the Office of the Oakland County Clerk, testified that “[t]he use of straight party voting significantly
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reduces the amount of time that it takes a voter to mark his or her ballot and its elimination will significantly increase the amount of time that it takes to vote the ballot.” Rozell Declaration, ¶ 9 (Pg. ID No. 283). Rozell further notes that according to the “MIT line optimization calculator,” the elimination of straightparty voting could increase wait time as much as forty minutes in Oakland County, which is only 13% African-American. Id. at ¶ 14; Metzger Report at 6 (Pg. ID No. 225).
At oral argument, the Defendant argued that the State has taken measures to combat long wait times by adding a $5 million appropriation, presumably to be spent on more voting booths and staff. See Dkt. No. 1 (Exhibit 1, Pg. ID No. 31). However, Defendant has not provided the Court any information on how this money will be allocated amongst the different counties. For example, allocating the money evenly will do nothing to mitigate the fact that African-Americans would still be disproportionally harmed by P.A. 268. Moreover, it appears that the $5 million appropriation is woefully insufficient. There is evidence that it would actually take $30 million, six times the amount appropriated, to adequately combat the long lines. Dkt. No. 1 (Exhibit 13 at p. 5, Pg. ID No. 278).
Additionally, the new ballots would still include political party vignettes across the top. The Gongwer Report, published on May 23, 2016, concluded that voters that are used to straight-party voting may end up having their votes
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discounted due to voter confusion. Complaint (Exhibit 15, Pg. ID No. 306–07) (“The concern is that voters accustomed to voting a straight-party ballot will circle or make some type of mark next to the vignette in an attempt to cast their vote . . . if the voter made a mark next to the vignette and voted in any other race, then the machine would accept the ballot with no vote recorded for the partisan races and the voter unaware of the error.”); see also Rozell Declaration, ¶ 18 (Pg. ID No. 284–85) (“The uniform opinion among the county clerks is that this is going to cause great confusion and that voters, used to being able to vote straight-party, will circle the party they want or otherwise seek to mark this new ballot display, thinking that this is the way to vote straight-party as they have done in the past.”). Thus, there is also a risk that votes will simply not be counted due to voter confusion. Obviously, because African-American voters are statistically more likely to use straight-party voting, they face a disproportionate risk of this harm as well.
2. State Interests The Defendant’s stated reasons for P.A. 268 are 1) to follow the trend among states away from the straight-ticket voting option; 2) to demand voters be more knowledgeable about candidates; and 3) to encourage voters to make selections based on criteria other than party affiliation. Dkt. No. 20 at 34–35 (Pg. ID No. 569–70). Defendant argues that the elimination of straight-party voting will
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help “preserve the purity of elections,” and “to guard against abuses of the elective franchise.” Dkt. No. 20 at 27 (Pg. ID No. 562). These interests are tenuous at best.
First, the mere wish to follow “the trend” among other states is problematic for several reasons. The record indicates that P.A. 268 would have a disparate impact on African-Americans in the State of Michigan. The fact that some other states do not allow straight party voting changes none of the facts that are before this Court. Furthermore, and more importantly, the behaviors of other states are irrelevant to the question of constitutionality. If the Ohio Legislature successfully instituted poll-taxes and literacy tests without challenge, it would not change the fact that poll-taxes and literacy tests are still clearly unconstitutional burdens on the right to vote.
Second, Defendant has not demonstrated that P.A. 268 necessarily demands that voters will rely on anything more than party affiliation while voting. As depicted in the Complaint, the new ballot will still inform the voters of the party affiliation of every partisan candidate. See Complaint at 13 (Pg. ID No. 13). Even Defendant concedes that “[r]emoving the straight ticket option does not prevent voters from voting only for members of one political party. Instead, it prevents the voter from doing so with a single vote.” Id. at 34 (Pg. ID No. 569). Therefore, it seems the only purpose behind P.A. 268 is to require voters to spend more time filling more bubbles.
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Finally, Defendant has not demonstrated how straight-party voting has damaged, or could possibly damage, the “purity” of the election process. There is nothing “impure” or “disengaged” about choosing to vote for every candidate affiliated with, for example, the Republican Party. A voter may base their vote on any criteria he or she wishes, including party affiliation. See Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986) (“The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.”).
Moreover, the idea that voting one’s party reflects ignorance or disengagement is, ironically, disconnected from reality. Voters may, and often do, have substantive reasons for voting only for members of certain political parties. Even if “disengaged” voting was problematic—and it is not—the Court finds that P.A. 268 does nothing to encourage voters to be any more “engaged.” Unless there are plans to use the $5 million appropriation to host free civics classes across the state (which does not appear to be the case), there is nothing in the record to suggest that changing the ballot form will encourage voters to become political science scholars before voting. Therefore, functionally P.A. 268 is “disengaged” from its own justifications.
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Accordingly, because the state’s interest do not outweigh the burdens imposed by the law, Plaintiffs are likely to succeed on the merits of their Equal Protection Claim.
c. Voting Rights Act Section 2 of the Voting Rights Act provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). According to Plaintiffs, P.A. 268 violates § 2 because it “would have a disproportionately negative impact on AfricanAmerican voters.” Dkt. No. 4 at 43 (Pg. ID No. 360). Section 2, unlike other federal legislation that prohibits discrimination, does not require proof of discriminatory intent. Moore v. Detroit School Reform Bd., 293 F.3d 352, 365 (6th Cir. 2002). Instead, a plaintiff need only show that the challenged action or requirement has a discriminatory effect on members of a protected group: A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate
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to participate in the political process and to elect representatives of their choice. 52 U.S.C. § 10301(b); Moore, 293 F.3d at 365; see also Mixon v. Ohio, 193 F.3d 389, 407 (6th Cir. 1999) (“Section 2 of the voting rights Act requires only a showing of discriminatory effect.”). In total, “Section 2 applies to any ‘standard, practice, or procedure’ that makes it harder for an eligible voter to cast a ballot, not just those that actually prevent individuals from voting.” Husted II, 768 F.3d at 552. Thus, Plaintiffs’ claim that P.A. 268 “disproportionately place[s] burdens on African-American voters that make it harder for them to exercise their right to vote than other groups of voters is encompassed within Section 2.” Id. “It does not matter that Plaintiffs do not argue that they are completely prevented from voting.” Id. Section 2 requires proof of two elements for a vote denial claim. “First, as the text of Section 2(b) indicates, the challenged ‘standard, practice, or procedure’ must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’ ” Id. at 554; 52 U.S.C. § 10301(b). “Second, the Supreme Court has indicated that that burden must in part be caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.” Id. (citing Thornburg v. Gingles, 478 U.S. 30, 47
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(1986)). “In assessing both elements courts should consider the totality of circumstances.” Id. (quotations omitted).
1. Discriminatory Burden on Members of a Protected Class Plaintiffs must first prove that members of the protected class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). “The benchmark is thus quite straightforward—under the challenged law or practice, how do minorities fare in their ability ‘to participate in the political process’ as compared to other groups of voters?” Husted II, 768 F.3d at 556. If the Plaintiffs are able to demonstrate that the challenged law makes it disproportionately harder for the protected class to vote, then the Plaintiffs will have satisfied this element. When analyzing this first element, a district court may use expert testimony and statistical reports submitted by the parties. Id. at 555 (finding no clear error in the district court’s use of statistical evidence). In Husted II, the district court relied on expert reports submitted by the plaintiff and the defendant to find that a law limiting early voting disproportionately and negatively affected African-American voters. Id. at 532. The Sixth Circuit affirmed this finding, noting that AfricanAmericans were more likely to use early voting, and its reduction would place “disproportionate burdens” on their communities. Id. at 555.
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Here, as discussed supra, Plaintiffs have demonstrated that AfricanAmericans are more likely to use straight-party voting than white voters, and “its elimination will disproportionately affect African-American voters.” Complaint (Exhibit 10 at p.1, Pg. ID No. 220). Specifically, voter wait times will increase greatly in African-American communities in comparison to other communities. Accordingly, Plaintiffs have satisfied this element. Ohio Organizing Collaborative, 2016 WL 3248030 at *40 (finding that a burden sufficient to satisfy the AndersonBurdick test is sufficient to satisfy the first element of a Section 2 claim under the Voting Rights Act).
2. Link to Social and Historical Conditions The Plaintiffs now must show that the burden must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class. Gingles, 478 U.S. at 47. In doing so, the Court should look to the “totality of the circumstances” surrounding the legislation. When analyzing this element, the Supreme Court has endorsed the use of nine factors (the “Senate Factors”) as relevant to assessing “the totality of the circumstances” in Section 2(b): 1. the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
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2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction;
8. whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and
9. whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Gingles, 478 U.S. at 36–37. The Supreme Court added, however, that the Senate
Factors are “neither comprehensive nor exclusive” and that “ ‘there is no
requirement that any particular number of factors be proved, or that a majority of
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them point one way or the other.’ ” Id. at 45. The Court finds factors 2, 5, 6, 7, 8 and 9 as being relevant. See Dkt. No. 4 at 46 (Pg. ID No. 363).
i. Factor 2: the extent to which voting in the elections of the state or political subdivision is racially polarized
This factor favors Plaintiffs. Racially polarized voting, “the situation where different races . . . vote in blocs for different candidates,” Gingles, 578 U.S. at 62, exists in Michigan. African-Americans in Michigan, as in the rest of the country, tend to vote overwhelmingly for Democrats.
ii. Factor 5: the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process
It’s no secret that racial discrimination in the state of Michigan has had traumatic effects on education, employment and health in the African-American community. Plaintiffs have provided evidence that African-Americans continue to bear the harmful effects of past discrimination. Dkt. No. 4 at 47–49 (Pg. ID No. 364–66); Metzger Report, pp. 13–15 (Pg. ID No. 232–34). It is not difficult to imagine how these effects, particularly in the employment setting, have made it more difficult for African-Americans to participate in the political process. For example, African-Americans are more likely to move from year to year, and are less likely to be home owners. Metzger Report, p. 27 (Pg. ID No. 246). Thus, making it more difficult to gain political capitol within a district. The Court finds
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that the effects of discrimination hinder African-Americans’ ability to participate effectively in the political process.
iii. Factor 6: whether political campaigns have been characterized by overt or subtle racial appeals
Recent political campaigns in Michigan, particularly in regions with large black population centers, have been marred with direct and indirect racial appeals. For example, during the Detroit mayoral election of 2013, the lone white candidate, Mike Duggan—who would go on to win the election—was characterized by an opponent, Tom Barrow, as “not having a Detroit accent.” Julie Banovic, Drama unfolds at Detroit mayoral debate, WXYZ DETROIT (June 4, 2013, updated June 5, 2013).4 Another racial incident occurred in 2015, when in Southfield, Michigan, flyers reading, “Let’s get the blacks out of Southfield,” were circulated throughout the city on multiple occasions in the months before the mayoral election. Gus Burns, Racist flyer: ‘Let’s get the blacks out of Southfield’, MLIVE.COM (August 24, 2015).5
The racially charged rhetoric has not been limited to local and state election campaigns. The 2016 U.S. Presidential Election has been punctuated with similar
4 Accessed at: http://www.wxyz.com/news/drama-unfolds-at-detroit-mayoraldebate. 5 Accessed at: http://www.mlive.com/news/detroit/index.ssf/2015/08/racist_flyer_lets_get_the_bl ac.html.
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racial appeals from its candidates. Some of those appeals have been implicitly ethnocentric. Full text: Donald Trump announces a presidential bid, THE WASHINGTON POST (June 16, 2015) (“When Mexico sends its people, they’re not sending their best . . . They’re rapists. And some, I assume, are good people.”);6 Eugene Scott, Trump defends inflammatory comments, asks ‘Who is doing the raping?’, CNN.COM (July 2, 2015);7 see also Brent Kendall, Trump Says Judge’s Mexican Heritage Presents ‘Absolute Conflict’, THE WALL STREET JOURNAL (June 3, 2016);8 see also Leigh Ann Caldwell, After Orlando, Donald Trump Would Expand Muslim Immigrant Ban, NBC NEWS (June 13, 2016) (“In a speech reacting to the massacre in Orlando . . . Donald Trump doubles down on his proposal to ban immigration of Muslims, and he expanded his proposal to ‘suspend immigration from areas of the world where there is a proven history of terrorism against the United States, Europe or allies.’ ”).9
6 Accessed at: https://www.washingtonpost.com/news/postpolitics/wp/2015/06/16/full-text-donald-trump-announces-a-presidential-bid/ 7 Accessed at: http://www.cnn.com/2015/07/01/politics/donald-trump-immigrantsraping-comments/ 8 Accessed at: http://www.wsj.com/articles/donald-trump-keeps-up-attacks-onjudge-gonzalo-curiel-1464911442 9 Accessed at: http://www.nbcnews.com/storyline/orlando-nightclubmassacre/donald-trump-would-expand-muslim-immigrant-ban-n591416
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Other appeals have implicitly used race to capitalize on controversy here in the state of Michigan and elsewhere. See Kathleen Gray, Clinton at NAACP event: I’m candidate to tackle racism, DETROIT FREE PRESS (May 1, 2016) (“Democratic presidential candidate Hillary Clinton appealed to a largely African-American crowd in Detroit on Sunday, saying that she was the best candidate to address the problems of systemic racism in America.”);10 Janell Ross, Bernie Sanders says white people don’t know what it’s like to live in a ‘ghetto.’ About that…, THE WASHINGTON POST (March 7, 2016).11 This is all in addition to the emergence of the “Black Lives Matter” Movement, and the increased attention to relationships between minority communities and law enforcement. See Nick Gass, Milwaukee sheriff at RNC: ‘Blue lives matter’, POLITICO.COM (July 18, 2016).12
In total, race and ethnicity have been brought to the forefront in contemporary political campaigns. Accordingly, this factor favors the Plaintiffs.
10 Accessed at: http://www.freep.com/story/news/politics/2016/05/01/democraticfront-runner-clinton-speak-detroit/83796232/ 11 Accessed at: https://www.washingtonpost.com/news/thefix/wp/2016/03/07/bernie-sanders-says-white-people-dont-know-what-its-like-tolive-in-a-ghetto-about-that/ 12 Accessed at: http://www.politico.com/story/2016/07/rnc-2016-sheriff-daveclarke-225768
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iv. Factor 7: the extent to which members of the minority group have been elected to public office in the jurisdiction
This factor is neutral. As Plaintiffs point out, although President Obama has won the state of Michigan twice, only one African-American has ever been elected to a major statewide partisan office in Michigan. However, as Defendant points out, many elected judges—including the Chief Justice of the Michigan Supreme Court—are African-American. Furthermore, there have been numerous AfricanAmerican representatives in local governments and the State Legislature.
v. Factor 8: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group
Plaintiffs point solely to the recent Flint Water Crisis as illustrative of the significant lack of responsiveness to the needs of minority groups. While the Flint Water Crisis certainly seems symptomatic of a government that is indifferent to the needs of the African-American community—the city of Flint, Michigan being a majority African-American city—it alone is not enough to demonstrate that there is a significant lack of responsiveness on the part of elected officials. Ohio Organizing Collaborative, 2016 WL 3248030 at *42–43. While the state government seemed to fail African-American residents in Flint, the same administration provided support to African-American residents during the Detroit bankruptcy—a city that is over 80% African-American—in 2014. See Chris Isidore, Detroit gets $195 million closer to salvation, CNN MONEY (June 20, 2014)
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(“Gov. Rick Snyder will sign a series of bills Friday to give the city the state funds, a key component of Detroit’s plan to wrap up its bankruptcy reorganization later this year.”).13 Accordingly, Plaintiffs have failed to demonstrate that this factor weighs in their favor.
vi. Factor 9: whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous
As described above, the state’s justifications for P.A. 268 are tenuous. Accordingly, this factor favors Plaintiffs.
Thus, four of the six relevant Senate Factors are favorable to the Plaintiffs. Having considered the Senate Factors, the Court now turns to the “totality of the circumstances” analysis of a VRA § 2 claim.
The real question that the Court must answer is whether the burdens caused by P.A. 268 “are in part caused by or linked to ‘social and historical conditions’ that have produced or currently produced discrimination against African Americans” in Michigan. Husted II, 768 F.3d at 557. This question is unavoidably answered in the affirmative. 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. Philip Bump, When did black Americans start
13 Accessed at: http://money.cnn.com/2014/06/20/news/economy/detroitbankruptcy-state-aid/
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voting so heavily Democratic?, THE WASHINGTON POST (July 7, 2015).14 Using straight-party voting is merely an efficient means of expressing identity with the Democratic Party.
Moreover, the disproportionate burdens of P.A. 268 are inexorably linked to racially discriminatory employment practices and housing policies that have created deeply segregated communities across Michigan. African-American communities will be impacted harder by P.A. 268 specifically because our metropolitan areas are so racially polarized. The racial polarization of our metropolitan areas can be tied directly to racist policies such as redlining and housing discrimination.
In sum, the Court concludes that P.A. 268 likely will “interact[] with the historical and social conditions facing African Americans” in Michigan “to reduce their opportunity to participate in” Michigan’s political process “relative to other groups of voters.” Ohio Organizing Collaborative, 2016 WL 3248030 at *44. Accordingly, Plaintiffs are likely to succeed on the merits of their Voting Rights Act claim.
14 Accessed at: https://www.washingtonpost.com/news/thefix/wp/2015/07/07/when-did-black-americans-start-voting-so-heavily-democratic/
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F. Irreparable Injury “When constitutional rights are threatened or impaired, irreparable injury is
presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury.” Obama for America, 697 F.3d at 436 (citations omitted). The case at bar deals with the right to vote, and thus this factor is presumed satisfied. Id.
G. Irreparable Harm to the State Defendant argues that the State’s interest in enforcing its legislation is
paramount in this matter. However, as the Sixth Circuit explained in Obama for America,
While states have “a strong interest in their ability to enforce state election law requirements,” Hunter, 635 F.3d at 244, the public has a “strong interest in exercising the ‘fundamental political right’ to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (quoting Dunn, 405 U.S. at 336, 92 S.Ct. 995). “That interest is best served by favoring enfranchisement and ensuring that qualified voters' exercise of their right to vote is successful.” Hunter, 635 F.3d at 244. 697 F.3d at 436–37; see also Husted II, 768 F.3d at 560. Considering that the burden on the state would be to merely reinstate the ballots used in the 2014 election cycle—and the record does not show that there were any problems with the old ballot—this factor also favors Plaintiffs.
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H. The Public Interest Here, an injunction would protect the public against burdens on the right to
vote. There would be no harm to the greater public in having the state continue to use the 2014 ballot form. Accordingly, this factor is satisfied.

V. CONCLUSION

In total, all four preliminary injunction factors favor the Plaintiffs.

Accordingly, for the reasons discussed herein, the Court will GRANT the

Plaintiffs’ Motion for preliminary injunction [4].

IT IS SO ORDERED.

Dated: July 22, 2016

s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on July 22, 2016.

s/Shawna Burns on behalf of Tanya R. Bankston TANYA R. BANKSTON Case Manager & Deputy Clerk

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, COMMON CAUSE,
MARY LANSDOWN, ERIN COMARTIN, and DION WILLIAMS,

Case No. 16-cv-11844

Plaintiffs, v.

UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN

RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant. /

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO STAY PRELIMINARY INJUNCTION [29]

I. INTRODUCTION

Before the Court is the Defendant’s Emergency Motion to Stay the Court’s

Preliminary Injunction, filed on July 29, 2016. Dkt. No. 29. On August 3, 2016, the

Court ordered responsive pleadings to be filed. See Dkt. No. 34. The matter is fully

briefed. For the reasons discussed below, the Defendant’s Motion is DENIED.

II. BACKGROUND On January 5, 2016, Public Act 268 (“P.A. 268”), which eliminated straightparty voting from the ballot, was signed into law by the Governor of the State of

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Michigan, Rick Snyder. On May 24, 2016, the Plaintiffs filed a complaint, claiming that the law violated the Voting Rights Act, and the Equal Protection Clause of the United States Constitution. See Dkt. No. 1. On May 27, 2016, the Plaintiffs filed a Motion for Preliminary Injunction. Dkt. No. 4.
Upon analyzing the Plaintiffs’ Motion, the facts before the Court established that African-American voters use straight-party voting at a higher rate than white voters do. From this, it was concluded that eliminating straight-party voting would disproportionately increase wait times for voters in predominantly AfricanAmerican communities as more people would have to take more time to vote. Therefore, it was held that P.A. 268 created a disproportionate burden on the right to vote of African-American voters in violation of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. The Court’s reasoning was detailed in its July 21, 2016 Opinion and Order Granting Plaintiffs’ Motion for Preliminary Injunction. See Dkt. No. 24. The next day, on July 22, 2016, the Court issued an Amended Opinion and Order, adding Plaintiff Common Cause to the caption. See Dkt. No. 25.
The Defendant filed Notice of Appeal on July 25, 2016. See Dkt. No. 27. On July 29, 2016, the Defendant filed an Emergency Motion to Stay the Preliminary Injunction. Dkt. No. 29. On August 1, 2016, the Court issued an Order for
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Preliminary Injunction on the matter. Dkt. No. 30. The same day, the Defendant filed a supplemental brief asking to stay the August 1, 2016 Order. Dkt. No. 32.
III. LEGAL STANDARD Federal Rule of Civil Procedure 62(c) authorizes a district court to stay or modify an injunction pending appeal. Fed. R. Civ. P. 62(c) (“While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.”). In determining whether to grant a stay, the Court must weigh the same four factors that are considered when determining whether to grant an injunction. See Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). “These well-known factors are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Id. “All four factors are not prerequisites but are interconnected considerations that must be balanced together.” Id. There is generally a higher burden that must be satisfied by a party seeking a stay than one seeking a preliminary injunction. Id. Although the “movant need not always establish a high probability of success on the merits,” the movant “must
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ordinarily demonstrate to a reviewing court that there is a likelihood of reversal.” Id. There is an inverse relationship between the amount of harm that the movant will suffer absent the stay, and the probability of success the movant must demonstrate. Id. At the bare minimum, the movant must show “serious questions going to the merits.” Id. at 154 (quoting In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). The following three factors are considered in evaluating the harm that will occur absent a stay: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Id.
IV. DISCUSSION A. Procedural Arguments
Defendant first argues that the preliminary injunction should be stayed because the Court’s Order was procedurally improper. Defendant argues that the Court’s original opinion and order [24] was not in compliance with Federal Rule of Civil Procedure 65. Next, Defendant argues that the Court’s latter Order [30] did not comply with Federal Rule of Civil Procedure 60. Finally, Defendant argues that the matter should be stayed because of due process concerns regarding the evidence considered by the Court.
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a. Rule 65 Defendant argues that the Court’s first Order was in violation of Rule 65(c) and Rule 65(d)(1) of the Federal Rules of Civil Procedure. Neither of these arguments, however, are an appropriate basis to stay a preliminary injunction. Rule 65(c) states that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). However, in this Circuit, this Rule has long been discretionary. Moltan Co. v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (“While we recognize that the language of Rule 65(c) appears to be mandatory, and that many circuits have so interpreted it, the rule in our circuit has long been that the district court possesses discretion over whether to require the posting of security.”). Accordingly, this argument fails. Rule 65(d)(1) states that “[e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” Defendant asserts that the Court’s original opinion failed to meet the latter two prongs of Rule 65(d)(1).
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Rule 65 was designed “to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Owner-Operator Independent Drivers Ass’n, 124 F.3d 199 (Table), 1997 WL 525411 (6th Cir. August 21, 1997). Accordingly, any injunction must “describe in reasonable detail . . . the act or acts sought to be restrained.” Id. (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974)).
The Court’s original opinion was reasonably clear enough to communicate that the State was enjoined from enforcing Public Act 268 in any manner that would prohibit straight-party voting. Michigan State A. Philip Randolph Institute v. Johnson, 2016 WL 3922355, *10 (E.D. Mich. July 21, 2016) (“Here, as discussed supra, Plaintiffs have demonstrated that African-Americans are more likely to use straight-party voting than white voters, and “its elimination will disproportionately affect African-American voters.”). Nevertheless, any confusion or ambiguity in the Court’s original order was dispelled in the Court’s August 1, 2016 Order. See Dkt. No. 30.
b. Rule 60 Defendant next argues that the Court’s August 1, 2016 Order [30] was improperly issued under Federal Rule of Civil Procedure 60(a). Dkt. No. 32 at 12 (Pg. ID No. 852). Defendant argues that once the notice of appeal was filed, the
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Court no longer had jurisdiction to enforce the preliminary injunction. Id. However, Defendant’s argument stands in contrast with Rules 60(a) and 62.
Rule 60(a) provides that The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave. Fed. R. Civ. P. 60. “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); see also United States v. Garcia–Robles, 562 F.3d 763, 767–68 (6th Cir. 2009). This transfer of power, however, does not effect a total divestiture of jurisdiction from the district court . . . to enforce its judgment. City of Cookeville v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 394 (6th Cir. 2007). The district court is only not allowed to expand or alter its judgment. Id. Here, there was no such expansion. The Court merely issued its subsequent Order for Preliminary Injunction as a tool for enforcement. The Defendant’s Motion for Stay indicated that it was unsure of how to comply with the Court’s original Order. See Dkt. No. 29 at 17 (Pg. ID No. 813) (“There are multiple sections and aspects of P.A. 268, and the Court’s order is silent as to whether P.A.
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268 is enjoined in its entirety or whether only certain sections cannot be implemented.”). The Court’s August 1, 2016 Order merely remedied the Defendant’s confusion in order to effect its enforcement. Its issuance was therefore, outside the scope of Rule 60(a)’s limitations.
Additionally, the Court’s action falls squarely within the authorization of Federal Rule of Civil Procedure 62. Rule 62 provides that “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights.” Fed. R. Civ. P. 62. Accordingly, the Court’s August 1, 2016 Order was valid under the Federal Rules.
c. Evidentiary Issues The Defendant next argues that the Court should stay the injunction because the Court erred in its handling of evidentiary matters. First, Defendant argues that the Court erred in not allowing the Defendant an opportunity to challenge the Plaintiffs’ expert report of Kurt Metzger. Dkt. No. 29 at 18 (Pg. ID No. 814). Second, the Defendant argues that the Court erred in citing to outside sources in its analysis. Id. at 20 (Pg. ID No. 816). These arguments are without merit.
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i. Kurt Metzger’s Report Defendant apparently believes they were due a Daubert hearing to challenge the Report of Mr. Metzger. Id. at 19 (Pg. ID No. 815). Defendant provides no authority for this position. Moreover, Daubert hearings are typically only found to be necessary when there is a jury. The risks associated with expert reports are not present when the judge is the fact-finder. Robert B. Miller & Associates, Inc. v. American Commercial Lines LLC, No. 5:09-cv-217, 2011 WL 3714777, *2 (W.D. Ky. August 23, 2011) (citing United States v. Demjanjuk, 367 F.3d 623, 633 (6th Cir. 2004)). The Court need only concern itself with the expert’s reliability. In the present case, the Court took into consideration Mr. Metzger’s background and methodology, and concluded that his analysis was reliable. No Daubert hearing was needed. Furthermore, the Defendant had plenty of opportunity to challenge the report of Mr. Metzger. The Plaintiffs submitted Metzger’s report with the Complaint on May 24, 2016. See Dkt. No. 1. Defendant had seven weeks to challenge Metzger’s conclusions. However, instead of presenting a counter expert or filing a timely request for limited discovery, the Defendant chose to wait until the eve of the hearing on the preliminary injunction to request an opportunity to challenge the report. The Court’s reasons for denying the Defendant’s request were explained in detail in its Amended Opinion and Order. See Michigan State A. Philip Randolph
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Institute, 2016 WL 3922355 at *6. Those reasons are as valid now as they were then.
ii. Judicial Notice Defendant next argues that the Court’s citations to news articles violated due process. Dkt. No. 29 at 20 (Pg. ID No. 816). The Court did not cite to outside sources when it found that Public Act 268 violated the Equal Protection Clause. Michigan State A. Philip Randolph Institute, 2016 WL 3922355 at *9. For this reason alone, the request for a stay on this basis can be denied. However, the Defendant’s argument regarding the Court’s citation to news articles in its discussion of Plaintiffs’ Voting Rights Act claim is also without merit. When considering the Gingles factors, the Court cited to several outside sources in its discussion of two of the factors. First, when finding that Factor 6 (whether political campaigns have been characterized by overt or subtle racial appeals) favored the Plaintiffs. Michigan State A. Philip Randolph Institute, 2016 WL 3922355 at *11–12. Then a second time when finding that Factor 8 (whether there has been a significant lack of responsiveness on the part of elected officials to the needs of minorities) favored the Defendant. Id. at *13. Nothing about this was improper. Federal Rule of Evidence 201 permits judges to take judicial notice of facts “not subject to reasonable dispute in that [they are] either (1) generally known
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within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Lyons v. Lafler, No. 2:10-cv-11386, 2011 WL 836753, *2 (E.D. Mich. March 9, 2011) (citing FED. R. EVID. 201(a) and (b)). “A high degree of indisputability is the essential prerequisite” of adjudicative facts.
The local news sources cited in the Opinion merely recount events that have taken place within the territorial jurisdiction of this Court. For example, this Court, located in the city of Detroit, Michigan, is more than capable of taking judicial notice of the fact that the Governor of Michigan, Rick Snyder, did in fact sign a series of bills to aid the city of Detroit through its Chapter 9 bankruptcy. Therefore, this and other like citations fall within the scope of Federal Rule of Evidence 201(b)(1).
Moreover, the accuracy of the national sources cited by the Court, such as the Wall Street Journal and the Washington Post, cannot reasonably be disputed. Particularly since they merely recounted events that have taken place in the public light (often, on camera during nationally televised events). Therefore, these and other like citations fall within the scope of 201(b)(2). Accordingly, the Defendant’s request for stay on this basis also fails.
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B. Irreparable Harm The Defendant argues that the Court should stay the injunction because they
are likely to show that the Defendant, and not the Plaintiffs, are to suffer irreparable harm. Dkt. No. 29 at 22 (Pg. ID No. 818). In support of this argument, Defendant has merely re-hashed the same arguments it brought in opposing the preliminary injunction.
This Court has already ruled that the Defendant’s arguments are insufficient. Michigan State A. Philip Randolph Institute, 2016 WL 3922355, *13–14. Under the Sixth Circuit’s precedent, established in Obama for America v. Husted, the harm likely to be suffered by Plaintiffs should the injunction have been denied outweighs the harm suffered by the State now that the injunction has been granted. 697 F.3d 423, 436–37 (6th Cir. 2012). The balancing of these interests on Defendant’s request for a stay yields the same result. Staying the injunction pending the appeal this close to the November election would likely subject Plaintiffs to the harms of P.A. 268, thus having the effect of denying the injunction in the first place. Accordingly, this factor does not weigh in the Defendant’s favor.
C. Likelihood of Success on the Merits and Public Benefit The Defendant next argues that the injunction should be stayed because the
Defendant is likely to succeed on the merits of its appeal, and a stay would benefit
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the public. Once again, the Court is presented with the same arguments raised in opposition of the preliminary injunction.
For the reasons discussed in the Court’s Amended Opinion and Order [25], the Court finds that the Defendant is not likely to succeed on the merits of its appeal. The Court further finds that the benefit to enforcing the P.A. 268 is not sufficient to justify the likely infringement of Plaintiffs’ voting rights. Accordingly, the Defendant’s request for stay is denied.

IV. CONCLUSION

For the reasons discussed above, the Defendant’s Motion to Stay the

Preliminary Injunction is DENIED.

IT IS SO ORDERED.

Dated: August 15, 2016 Detroit, MI

s/Gershwin A. Drain HON. GERSHWIN A. DRAIN United States District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on August 15, 2016.
s/Teresa McGovern Teresa McGovern Case Manager & Deputy Clerk

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 17, 2016
Ms. Denise C. Barton Mr. Adam Lee Spinelli Fracassi Mr. Erik A. Grill Mr. Joseph Yung-Kuang Ho Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Mr. Kevin M. Blair Ms. Andrea L. Hansen Honigman, Miller, Schwartz & Cohn 222 N. Washington Square, Suite 400 Lansing, MI 48933
Mr. Mark C. Brewer 17000 W. Ten Mile Road, Second Floor Southfield, MI 48075-0000
Mr. John J. Bursch Bursch Law 9339 Cherry Valley, S.E., Suite 78 Caledonia, MI 49316
Ms. Mary Ellen Gurewitz Sachs Waldman 2211 E. Jefferson Street, Suite 200 Detroit, MI 48226
Mr. John D. Pirich Honigman, Miller, Schwartz & Cohn 222 N. Washington Square, Suite 400 Lansing, MI 48933
Re: Case Nos. 16-2071/16-2115, MI State A. Philip Randolph, et al v. Johnson Originating Case No. : 2:16-cv-11844

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Dear Counsel, The court today announced its decision in the above-styled case. Enclosed is a copy of the court's opinion together with the judgment which has been entered
in conformity with Rule 36, Federal Rules of Appellate Procedure. Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0198p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE; ┐

MARY LANSDOWN; ERIN COMARTIN; DION │

WILLIAMS; COMMON CAUSE,

│

v.

Plaintiffs-Appellees,

│
││>

│

│

RUTH JOHNSON, in her official capacity as Michigan │

Secretary of State,

│

Defendant-Appellant. │ ┘

Nos. 16-2071/2115

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-11844—Gershwin A. Drain, District Judge.

Decided and Filed: August 17, 2016

Before: MOORE, GILMAN, and STRANCH, Circuit Judges.

_________________

COUNSEL
ON MOTION AND REPLY: Denise C. Barton, Erik A. Grill, Adam Fracassi, Joseph Y. Ho, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. ON RESPONSE: Mary Ellen Gurewitz, SACHS WALDMAN, P.C., Detroit, Michigan, Mark Brewer, GOODMAN ACKER, P.C., Southfield, Michigan, for Appellees. ON BRIEF: John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, John D. Pirich, Andrea L. Hansen, Kevin M. Blair, HONIGMAN MILLER SCHWARTZ AND COHN LLP, Lansing, Michigan, for Amici Curiae.
MOORE, J., delivered the opinion of the court in which GILMAN and STRANCH, JJ., joined. GILMAN, J. (pp. 16–18), delivered a separate concurring opinion.

1

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_________________
OPINION _________________
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ruth Johnson, Michigan’s Secretary of State (the “Secretary”), moves for a stay pending appeal of the district court’s July 22, 2016 and August 1, 2016 orders granting the plaintiffs’ motion for a preliminary injunction. The district court’s preliminary injunction prohibits the Secretary from enforcing Public Act 268 (“PA 268”), a law that eliminates straight-party voting in Michigan. The district court found that Michigan’s elimination of straight-party voting violated the Fourteenth Amendment of the U.S. Constitution because it placed a burden on voters—particularly AfricanAmerican voters—and that this burden was not justified by Michigan’s stated interests in enacting the law. The district court also found that PA 268 violated Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. For the reasons discussed below, we DENY the Secretary’s motion for a stay pending appeal.
I. BACKGROUND
Michigan has offered “straight-party” (or “straight-ticket”) voting since 1891. See 1891 PA 190, § 14. Straight-party voting allows a voter to vote for all candidates of their desired political party by making a single mark designating the selection of that political party, rather than voting for each partisan candidate individually. See, e.g., R. 1-7 (2008 Macomb Cty. Ballot) (Page ID #206). Prior to 2015, Michigan attempted to abolish straight-party voting on two occasions: first in 1964, and again in 2001. R. 20-2 (State Fiscal Agency Bill Analysis at 2) (Page ID #579). On each occasion, the law was rejected by referendum. Id. Straight-party voting has thus been available to Michigan citizens for an uninterrupted period of 125 years.
In 2015, the Michigan legislature passed PA 268, which eliminated straight-party voting in Michigan. See 2015 PA 268. PA 268 also appropriates $5 million “to the department of state to purchase voting equipment to implement the elimination of straight party ticket voting.” Id. at § 795c(2). Because PA 268 includes an appropriation, it cannot be repealed by referendum. See Mich. United Conservation Clubs v. Sec’y of State, 630 N.W.2d 297, 298 (Mich. 2001). PA 268

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was signed into law by the governor in 2016 and became effective immediately; the law will thus remove straight-party voting from Michigan ballots beginning in the November 8, 2016 general election. See 2015 PA 268; R. 1-15 (Baxter Decl. at 4) (Page ID #289).
Plaintiffs—the Michigan State A. Philip Randolph Institute, Common Cause, and several individual voters—filed a complaint against the Secretary in the U.S. District Court for the Eastern District of Michigan on May 24, 2016, alleging that PA 268 violated the Fourteenth Amendment of the U.S. Constitution, Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301, and the Americans with Disabilities Act, 42 U.S.C. § 12132. R. 1 (Compl. at 1) (Page ID #1); see also R. 9 (Am. Compl. at 5–6, 24–30) (Page ID #394–95, 413–19).
Plaintiffs included with their complaint an expert report prepared by Kurt Metzger, a demographer and former Regional Information Specialist with the U.S. Census Bureau in Detroit, Michigan. R. 1-11 (Metzger Report at 2–4) (Page ID #221–24). Metzger’s statistical analysis demonstrated “that African Americans are more likely to use the straight party voting option and that its elimination will disproportionately affect African American voters.” Id. at 12 (Page ID #231). The plaintiffs also attached declarations from several county election administrators that estimated that the elimination of straight-party voting would increase the time that it takes an individual to vote and thus cause a demonstrable increase in wait times for voting. See, e.g., R. 1-15 (Rozell Decl. at 3) (Page ID #283); R. 1-15 (Baxter Decl. at 4) (Page ID #289); R. 1-15 (Swope Decl. at 4) (Page ID #297).
Plaintiffs moved for a preliminary injunction on May 27, 2016. R. 4 (Mot. for Prelim. Inj. at 1) (Page ID #318). The Secretary filed a response in opposition, R. 20 (Def. Resp. in Op. at 1) (Page ID #536), and the plaintiffs replied, R. 21 (Pl. Reply to Def. Am. Resp. at 1) (Page ID #532). The district court held a hearing on the motion on July 14, 2016. R. 26 (Prelim. Inj. H’rg Tr. at 1) (Page ID #743).
On July 21, 2016, the district court issued an opinion and order granting the plaintiffs’ motion for a preliminary injunction. Michigan State A. Philip Randolph Institute v. Johnson, --F. Supp. 3d ----, 2016 WL 3922355, at *1 (E.D. Mich. July 21, 2016). The district court first concluded that the plaintiffs were not likely to succeed on the merits of their ADA claim because

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it did not appear that any of the plaintiffs had standing to bring such a claim. Id. at *5. The district court found that the plaintiffs were likely to succeed on their claims brought under the Equal Protection Clause and Section 2 of the Voting Rights Act, however. First, with regard to the Equal Protection Clause claim, the district court evaluated PA 268 under the Anderson/Burdick framework and determined that the state’s asserted interests did not outweigh the burden that PA 268 placed on voters. Id. at *7–9. Second, in analyzing the plaintiffs’ claim under Section 2 of the Voting Rights Act, the district court concluded that the plaintiffs had demonstrated that the elimination of straight-party voting would disproportionately impact African-American voters and, applying the factors articulated in Thornburg v. Gingles, 478 U.S. 30, 36–37 (1986), the district court concluded that the disproportionate burden was, in part, “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against” African-American voters. Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *10 (quoting Gingles, 478 U.S. at 47). Because the district court found that the plaintiffs would suffer an irreparable injury—the restriction of their right to vote—if the law were to go into effect, and because “the burden on the state would be to merely reinstate the ballots used in the 2014 election cycle,” the district court concluded that the preliminary injunction factors favored the plaintiffs. Id. at *13–14. The district court subsequently issued two revised orders imposing the preliminary injunction. R. 25 (Prelim. Inj. at 1–37) (Page ID #706–42); R. 30 (Prelim. Inj. at 1–3) (Page ID #835–37).
The Secretary filed her first notice of appeal on July 25, 2016. R. 27 (Notice of Appeal) (Page ID #795). The Secretary also moved in the district court for a stay of the preliminary injunction pending appeal. R. 29 (Def. Mot. for Stay Pending Appeal) (Page ID #797). On August 2, 2016, the Secretary filed a separate notice of appeal to the second revised order. R. 33 (Notice of Appeal) (Page ID #861). Unhappy with the district court’s briefing schedule on the emergency motion, see Appellant Mot. at 2, the Secretary filed an emergency motion in this court for a stay of the injunction pending appeal. On August 15, 2016, the district court issued an opinion and order denying the Secretary’s emergency motion to stay the preliminary injunction. Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2016 WL 4267828, at *1 (E.D. Mich. Aug. 15, 2016). The Secretary asked that we rule on her motion for a stay pending appeal by August 17, 2016.

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II. DISCUSSION
We evaluate four factors in considering a motion for a stay pending appeal under Federal Rule of Appellate Procedure 8(a):
(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.
Serv. Emp. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). These four factors “are interconnected considerations that must be balanced together.” Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006). “As the moving party, [the Secretary] has the burden of showing” that a stay is warranted. Serv. Emp. Int’l Union Local 1, 698 F.3d at 343. We conclude that the Secretary has not met this burden.
We first consider the likelihood that the Secretary will prevail on the merits of the appeal, and thus we must consider the likelihood that the Secretary can “show that the district court abused its discretion in granting the preliminary injunction.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). Under the abuse-of-discretion standard, “[t]he injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
A. Equal Protection Clause Challenge
The Secretary first asserts that the district court erred in holding that the plaintiffs were likely to succeed on their Equal Protection Clause challenge. “The right to vote is a ‘precious’ and ‘fundamental’ right,” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)), and it is clear that this right “‘is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.’” Id. (quoting League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008)). Specifically, “[t]he Equal Protection Clause applies when a state either classifies voters in disparate ways, or places restrictions on the right to vote.” Id. (internal

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citations omitted). Here, the plaintiffs have asserted that their right to vote is restricted by PA 268 because, in eliminating straight-party voting, PA 268 will increase waiting times at polling locations and will cause more voters to miscast ballots due to confusion.
We apply the framework established by the Supreme Court in Burdick v. Takushi, 504 U.S. 428, 434 (1992), and Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983), to evaluate Equal Protection Clause challenges to voting restrictions. See Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015). “Under the Anderson-Burdick test, the court must first ‘consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’” Id. at 693 (quoting Anderson, 460 U.S. at 789). Second, the court “must ‘identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.’” Id. “Finally, it must ‘determine the legitimacy and strength of each of those interests’ and ‘consider the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id.
“Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent” of the burden that the law imposes on the rights of voters. Burdick, 504 U.S. at 434. If a statute imposes a “‘severe’” burden on the right to vote, we apply strict scrutiny and the law “must be narrowly tailored and advance a compelling state interest.” Hargett, 791 F.3d at 693 (quoting Burdick, 504 U.S. at 434). By contrast, if the law imposes a “‘reasonable’ and ‘nondiscriminatory’” burden, “the statute will be subject to rational basis [review] and survive if the state can identify ‘important regulatory interests’ to justify it.” Id. “If the burden lies somewhere in between, courts will weigh the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Id. (internal quotation marks and alterations omitted).
In granting the plaintiffs’ motion for a preliminary injunction, the district court determined that PA 268 imposed a burden that fell in between the two extremes of this framework, and accordingly balanced the injury imposed by the law with the state’s asserted interest in eliminating straight-party voting. See Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *6. In its motion for a stay pending appeal, the Secretary insists that PA 268 “impacts only the manner of voting—not the right to vote.” Appellant Mot. at 3. It is clear,

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however, that how a state chooses to regulate the manner that a person must cast a ballot undoubtedly impacts the individual right. Indeed, the very premise of the Anderson/Burdick framework is that “all election regulations[] have an impact on the right to vote” to some degree. Burdick, 504 U.S. at 434. The question that we must answer is what the “character and magnitude of the asserted injury” on the right to vote is here, see Anderson, 460 U.S. at 789, and we do not believe that the Secretary has shown a likelihood that the district court erred in finding that PA 268 imposes a burden on the right to vote that justifies the application of more than rational-basis review, but less than strict scrutiny.
The district court identified two primary burdens that PA 268 would impose on the right to vote. First, by increasing the time that it takes to vote, the elimination of straight-party voting would increase the wait times for voting; and second, because the ballots maintained the same graphics identifying the political parties on the top of the ballot—removing only the bubble to vote for all candidates of that party—PA 268 would cause voter confusion and thus increase the risk of individuals not having their votes counted. Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *7–8. Moreover, because Metzger’s report demonstrated that there were “extremely high” correlations between the African-American voting population and the use of straight-party voting, the district court found that African Americans would be disproportionately burdened by PA 268. Id. at *7.
We first consider the district court’s conclusion that PA 268 would impose a burden on voters by increasing the time that it takes to vote. The district court credited the testimony of Joseph Rozell, the Director of Elections in the Elections Division of the Office of the Oakland County Clerk, who testified that “[t]he use of straight party voting significantly reduces the amount of time that it takes a voter to mark his or her ballot and its elimination will significantly increase the amount of time that it takes to vote the ballot.” R. 1-15 (Rozell Decl. at 3) (Page ID #283); Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *7; see also R. 1-15 (Baxter Decl. at 4) (Page ID #289); R. 1-15 (Swope Decl. at 4) (Page ID #297). The evidence presented to the district court suggested that nearly 50% of all voters use straight-party voting in Michigan. See R. 1-11 (Metzger Report at App. A) (Page ID #250–56). By increasing the time that it takes for an individual voter to complete his or her ballot, PA 268 will accordingly cause longer lines

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at polling places and increase the wait time to cast a vote. R. 1-15 (Rozell Decl. at 3) (Page ID #283). Indeed, Rozell estimated that “the elimination of straight-party voting could increase wait time as much as forty minutes in Oakland County.” Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *7 (citing R. 1-15 (Rozell Decl. at 4) (Page ID #284)). Longer lines at the polls “reduce[] the confidence voters have that their votes are counted,” impose additional monetary costs on voters that must stand in line, and may even turn some voters away from voting at all. R. 1-3 (“Managing Polling Place Resources” Caltech/MIT Study at 11–12) (Page ID #52–53).
Of particular significance is Metzger’s conclusion that African-American voters in Michigan “are more likely to use the straight party voting option” in Michigan, and to a significant degree. R. 1-11 (Metzger Report at 1) (Page ID #220). Specifically, the district court noted that, “although the average straight-party voting rate in Michigan is about 50%, the straight-party voting rate in African-American majority districts was 67% in 2012, and 73.5% in 2014.” Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *2, 7 (citing R. 1-11 (Metzger Report at App. A) (Page ID #250–56)). In Royal Oak Charter Township and Highland Park—cities with population that are 95.6% and 93.1% black, respectively—the straight-party voting rate was approximately 82% in 2014. R. 1-11 (Metzger Rep. at App. A) (Page ID #254, 256). Indeed, “[t]he five cities with straight-party voting rates greater than 75%[] were all majority African American.” Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *2. The district court accordingly found “that PA 268 presents a disproportionate burden on African Americans’ right to vote” and, “as Metzger concludes, the elimination of straight-party voting would likely have a larger impact on African-American voters.” Id. at *7; see R. 1-11 (Metzger Report at 13) (Page ID #231). Because African-American majority districts in Michigan such as Detroit have also historically faced some of the longest wait times in the state, see R. 1-15 (Baxter Decl. at 5–6) (Page ID #290–91), the increase in long lines occasioned by the elimination of straight-party voting will impact these voters to an even more significant degree.
The district court also concluded that PA 268 would place a burden on the right to vote because the law would cause voter confusion and thus increase the risk that ballots would be marked incorrectly and would not be counted by the ballot scanner. Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *8. Specifically, the ballots that Michigan intends to use

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in the 2016 general election maintain a listing of each political party at the top of the ballot, along with a graphic representing each party. See R. 1-16 (Gongwer Report at 1) (Page ID #396). These are substantially the same graphics that appeared on previous ballots in the straight-party voting section, and are in substantially the same location, but the bubble for selecting the party to vote that party’s candidates on a straight-party ticket has been removed. Compare R. 1-16 (Gongwer Report at 1) (Page ID #396), with R. 1-7 (2008 Macomb Cty. Ballot) (Page ID #206). The district court credited testimony from county election officials that “[t]he uniform opinion among the county clerks is that this is going to cause great confusion and that voters, used to being able to vote straight-party, will circle the party they want or otherwise seek to mark this new ballot display, thinking that this is the way to vote straight-party as they have done in the past.” Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *8 (quoting R. 1-15 (Rozell Decl. at 5–6) (Page ID #284–85)).
The Secretary presented no testimony or expert reports in the district court to counter these facts, nor does the Secretary present arguments in her motion for a stay that persuasively demonstrate that the district court committed clear error in its factual conclusions. Rather, the Secretary insists that the district court made an error in its legal conclusion regarding the degree of the burden imposed by PA 268 because filling out bubbles for candidates “is the very act of ‘voting,’” and thus cannot constitute a burden, or at least a burden that deserves more than rational-basis review. Appellant Mot. at 3–4. But again, this proves too much. In assessing the burden imposed on voters by a state’s electoral mechanisms, courts may undoubtedly consider whether the state’s practices will cause long lines and delays at polling places and how these lines and delays may impact the right of a voter to cast his or her ballot. See, e.g., League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477–78 (6th Cir. 2008).
The Secretary also places a strong emphasis on the fact that most states do not have straight-party voting; if the clear majority of states do not offer straight-party voting, the Secretary asserts, it is impossible to conclude that the absence of straight-party voting imposes an unconstitutional burden. See R. 26 (Prelim. Inj. H’rg Tr. at 29) (Page ID #771). Importantly, however, comparing the isolated voting practice of one state with the isolated voting practice of another state is not always an apples-to-apples comparison. This law presents a strong example.

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Declarations submitted by the plaintiffs report that Michigan ballots contain substantially more candidates than other states, and thus the practice of straight-party voting in Michigan may save far more time than straight-party voting in other states. See R. 1-15 (Baxter Decl. at 2) (Page ID #287); R. 1-15 (Swope Decl. at 2) (Page ID #295). Moreover, Michigan does not allow early voting,1 and Michigan does not permit no-excuse absentee voting, see Mich. Comp. Laws §§ 168.758 & 168.759, making the average wait times at physical polling locations on Election Day of tremendous significance to Michigan voters. In the 2012 general election, Michigan had the sixth-highest estimated average wait time as compared to other states. See 1-3 (“Managing Polling Place Resources” Caltech/MIT Study at App. 1) (Page ID #78). Each of these facts demonstrates that the option of straight-ticket voting may impact Michigan voters in a way that it does not impact voters in Ohio, for example. It is accordingly not enough for Michigan to simply rely on the lack of straight-party voting in other states; the necessary question is how this law interacts with other voting practices in Michigan, and the burdens this law places on voters who vote within Michigan’s electoral framework.
In considering the above, we conclude that the Secretary has not shown a likelihood of demonstrating that the district court erred in finding that the burden placed on voters by PA 268 requires more than rational basis, but less than strict scrutiny. We next turn to consider the district court’s evaluation of the state’s asserted interests. Here, the state has advanced two primary interests for PA 268: “fostering an engaged electorate that vote for candidates and issues” and “encouraging the electorate to vote for the nonpartisan issues on the ballot.” R. 20 (Def. Mot. in Op. at 23) (Page ID #562).
In eliminating straight-party voting, PA 268 requires voters to fill in individual bubbles for each candidate. A voter will now have to look, at least briefly, at each section of the partisan ballot in order to identify and fill in the desired bubble. Contrary to the state’s assertions, it is far from evident that this will “foster[] an engaged electorate.” Id. As the district court noted, “the new ballot will still inform the voters of the party affiliation of every partisan candidate,” Mich. State A. Philip Randolph Inst. v. Johnson, 2016 Wl 3922355, at *8, and as discussed above,

1See Michigan Dep’t of State, Elections & Voting: Early Voting, available at http://www.michigan.gov/sos/0,1607,7-127-29836-202483--F,00.html (last accessed August 12, 2016).

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graphics representing each of the parties appearing on the partisan ballot are prominently on display at the top of the ballot, just as before. The ballot will still inform voters of the available political parties, and the party affiliation of each partisan candidate will still appear beside the candidate’s name. Accordingly, a voter desiring to vote for all of the candidates of his or her desired political party may still do so without reading any of the candidates’ names, without knowing the office for which the candidate is running, and without knowing a single fact about either—the only change, as the state admits, will be that a voter now “can’t do it through one bubble.” R. 26 (Prelim Inj. H’rg Tr. at 31–32) (Page ID #773–74). The state has presented nothing apart from vague speculation that suggests that a voter will make a more informed choice in filling in each individual bubble rather than choosing to fill in one bubble for a straightparty vote.
The state also asserts that eliminating straight-party voting will reduce the likelihood that a voter will skip the non-partisan section of the ballot. Id. at 37 (Page ID #779). As discussed above, however, the district court credited testimony from county election officials that there is a likelihood that voters will still circle the party graphic at the top of the ballot, believing that they are casting a straight-party vote (as, perhaps, they have consistently done for decades). Accordingly, although we acknowledge that the state has a legitimate interest in reducing confusion over which section of the ballot needs to be individually completed, this interest is diminished by the new confusion that PA 268 will likely cause.
In sum, the district court credited unrebutted evidence in the record demonstrating that PA 268 will increase the time that it takes to vote, particularly in African-American communities where straight-party voting is prominent and where lines are often already long. The district court also found that the law was likely to increase voter confusion and miscast ballots. Although this burden is not severe, it is also not slight. In the face of this burden, the state has offered only vague and largely unsupported justifications of fostering voter knowledge and engagement. As the plaintiffs assert, there is nothing in the record “that straight party voters vote blindly, that they are less informed than other voters or that they fail to complete their ballot at a lower rate.” Appellee Resp. at 11 (emphasis removed). After evaluating the burdens imposed by the law and the state’s asserted justifications, we hold that the Secretary has not shown that there

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is a substantial likelihood that she will prevail on appeal in demonstrating that the district court erred in evaluating the plaintiffs’ Equal Protection Clause claim.
B. Voting Rights Act Challenge
The Secretary further asserts that she can demonstrate a substantial likelihood that the district court erred in its analysis under Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. Appellant Mot. at 6. Section 2 provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). Importantly, “Section 2, unlike other federal legislation that prohibits racial discrimination, does not require proof of discriminatory intent.” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002). Rather, Section 2(b) provides:
A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
52 U.S.C. § 10301(b). “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47. The Supreme Court in Gingles listed several factors “that might be probative of a § 2 violation,” drawing from the Senate Judiciary Committee Majority Report that accompanied the bill. Id. at 36. These factors include:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or

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other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Id. at 36–37. The Section 2 framework discussed above is most often used in assessing vote-
dilution claims, rather than vote-denial or vote-abridgement claims. See Veasey v. Abbott, ---
F.3d ----, 2016 WL 3923868, at *17 (5th Cir. July 20, 2016). Nonetheless, “courts have
entertained vote-denial claims regarding a wide range of practices,” and “Section 2’s plain
language makes clear that vote denial is precisely the kind of issue Section 2 was intended to
address.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 239 (4th Cir.
2014); see also Gingles, 478 U.S. at 45 n.10 (“Section 2 prohibits all forms of voting
discrimination, not just vote dilution.”).2

2In Ohio State Conference of the NAACP v. Husted (“Husted II”), we held that Section 2 of the Voting Rights Act applied to the plaintiffs’ challenge to Ohio’s early-voting procedures because the statutory language of Section 2 indicates that “Section 2 applies to any discriminatory ‘standard, practice, or procedure . . . which results in a denial or abridgement’ of the right to vote.” 768 F.3d 524, 552 (6th Cir. 2014). Our opinion “read the text of Section 2 and the limited relevant case law as requiring proof of two elements for a vote denial claim. First, as the text of Section 2(b) indicates, the challenged ‘standard, practice, or procedure’ must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Id. at 554. “Second, the Supreme Court has indicated that that burden must be in part caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.’” Id. (quoting Gingles, 478 U.S. at 47). We noted that “[i]n assessing both elements, courts should consider ‘the totality of the circumstances,’” including consideration of the Gingles factors. Id.
Husted II affirmed the district court’s order granting the plaintiffs a preliminary injunction, but the Supreme Court stayed the district court’s preliminary injunction on September 29, 2014, in advance of the 2014 election. See Husted v. Ohio State Conference of the NAACP, 135 S. Ct. 42 (2014). Because the plaintiffs’ request for a preliminary injunction became moot after the 2014 election, we vacated our Husted II opinion. Ohio State Conf. of the NAACP v. Husted, No. 14-3877, 2014 WL 10384647, at *1 (6th Cir. Oct. 1, 2014). In setting out the framework for its Section 2 analysis in the present case, the district court acknowledged that Husted II was not binding because it had been vacated, but considered Husted II persuasive authority. 2016 WL 3922355, at * 6 n.2.

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The district court concluded that the plaintiffs had demonstrated that PA 268 imposed a disproportionate effect on African-American voters because the Metzger report “demonstrated that African-Americans are more likely to use straight-party voting than white voters, and ‘its elimination will disproportionately affect African-American voters.’” 2016 WL 3922355, at *10 (quoting R. 1-10 (Metzger Report at 1) (Page ID #220)). The district court further found that this burden was “linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class,’” citing Gingles factors 2, 5, 6, 7, 8, and 9 as relevant. Id. at *13. The district court drew from available news articles and facts from Metzger’s report that demonstrated that African Americans in Michigan “tend to vote overwhelmingly for Democrats,” that African Americans “continue to bear the harmful effects of past discrimination,” and that “[r]ecent political campaigns in Michigan . . . have been marred with direct and indirect racial appeals.” Id. at *11–13.
We do not doubt that these facts are true; it is a more challenging question, however, to say that the plaintiffs have established that PA 268 “interacts with” these conditions “to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47. The district court found that “racist policies such as redlining and housing discrimination” in Michigan contributed to the racial polarization of metropolitan areas. Mich. State A. Philip Randolph Inst., 2016 WL 392355, at *13. If black voters in Michigan disproportionately use straight-party voting, and the absence of straight-party voting in Michigan will increase wait times, then PA 268 may “interact[] with” the racial polarization of communities in Michigan “to cause an inequality” because African-American communities will likely face longer wait times in the absence of PA 268 than non-AfricanAmerican communities. Gingles, 479 U.S. at 47. Although it is a closer question whether the Secretary can establish a likelihood of success on appeal with regard to the Section 2 claim, nonetheless, this does not alter the fact that the likelihood-of-success-on-appeal factor weighs in
The Secretary argues that it was inappropriate for the district court to do so. Appellant Mot. at 4. The framework set forth in our Husted II opinion for evaluating a Section 2 vote-denial claim, however, has recently been adopted both by the Fifth Circuit sitting en banc and the Fourth Circuit. See Veasey v. Abbott, No. 14-41127, --- F.3d----, 2016 WL 3923868, at *17 (5th Cir. July 20, 2016) (en banc); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). We agree with Husted II—and our sister Circuits—that the two-part framework discussed above is appropriate when evaluating a Section 2 vote-denial claim, and the district court did not err in its decision to use the Husted II framework to evaluate the plaintiffs’ challenge here.

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favor of the plaintiffs because of our conclusion regarding the Equal Protection Clause claim discussed above.
C. Irreparable Injury and the Public Interest
We also conclude that the Secretary is not likely to establish that the district court abused its discretion in granting an injunction because we find the district court appropriately evaluated the remaining preliminary-injunction factors. As the district court stated, “[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury.” Mich. State A. Philip Randolph Inst., 2016 WL 3922355, at *13 (quoting Obama for America, 697 F.3d at 436). Of particular significance here, the district court’s grant of a preliminary injunction maintained the status quo in Michigan that was in place for 125 years: maintaining straight-party voting, where “the record does not show that there were any problems with the old ballot” that contained the straight-party option. Id. at *14. Consideration of the factors evaluated by the district court in granting a preliminary injunction also informs the remaining factors that we must evaluate in determining whether to stay the district court’s opinion. See Serv. Emp. Int’l Union Local 1, 698 F.3d at 343. This case does not involve the potential disruption of complicated electionadministration 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. We find that the Secretary has not met her burden to demonstrate that a stay pending appeal of the district court’s order is warranted.
III. CONCLUSION
For the foregoing reasons, the motion for a stay pending appeal is DENIED.

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_________________
CONCURRENCE _________________
RONALD LEE GILMAN, Circuit Judge, concurring. I fully concur in the lead opinion and write separately only to emphasize a few points. First, our ruling today is not the end of the case. We are simply deciding that the Michigan Secretary of State has not met her burden of demonstrating that a stay of the district court’s preliminary injunction is warranted. In reaching this decision, we are limited to the admittedly one-sided proof available at this stage of the litigation because the Secretary, for whatever reason, did not timely submit any proof contradicting the plaintiffs’ evidence.
For instance, various appellate briefs supporting the Secretary’s position now characterize Metzger’s report, which was included with the plaintiffs’ complaint, as “junk science” and attack its alleged “cherry picking” of data. But the Secretary never submitted any contrary proof to the district court. She did not even request limited discovery until July 13, 2016, the day before the hearing on plaintiffs’ motion for a preliminary injunction and over seven weeks after the motion was filed. By that point, the district court reasonably concluded that her request was not timely.
The Secretary will have an opportunity to present contrary evidence in subsequent proceedings. Perhaps the Secretary’s proof at later stages of this case will overcome the plaintiffs’, but at this early stage of the case we are limited to the proof that is presently in the record.
Turning to that record, the lead opinion concludes that PA 268 burdens the right to vote by increasing voter disenfranchisement in at least two ways. First, voter confusion resulting largely from the continued existence of the party vignettes on the ballots is likely to cause an increase in erroneous ballots due to some voters circling the vignettes rather than marking the bubbles in the partisan section of the ballot. The second burden involves longer lines at polling places, particularly in the African-American community.

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With regard to the longer lines, I believe that precisely defining the burden at issue in this case is paramount. The consequential burden in my view is not—as the Secretary and the amici who support her argue—simply the extra time that each straight-party voter will have to spend marking additional bubbles. Nor is it the longer lines at polling places resulting from the aggregation of that extra time per se. Rather, it is the fact, as supported by the current record, that the longer lines will deter citizens from voting.
Among plaintiffs’ proof is a declaration from Daniel Baxter, the Director of Elections in the Office of the Detroit City Clerk. He flatly states that “[l]onger lines will deter voters from voting.” Chris Swope, the Ingham County Clerk, makes a similar a statement. Taken together, along with Metzger’s report identifying the positive correlation between straight-party voting and the African-American community, the above declarations support the district court’s preliminary injunction. And, unlike the potential disruptions in other cases that involve voteridentification requirements or the elimination of early voting, I see no grave harm to the state of Michigan in allowing straight-party voting to remain on the ballot this November, as it has for the past 125 years.
I next want to allay the unwarranted intimations by the Secretary and the amici supporting her that, by denying the stay, we are establishing a permanent constitutional entitlement to straight-party voting. This framing is misleading for two reasons. First, as mentioned above, we are at the preliminary stage of this case, and the ruling that the evidence now supports might well be different at a later stage. Second, even if the proof does not change, voting-regulation challenges under the Equal Protection Clause and Section 2 of the Voting Rights Act are jurisdiction-specific inquires. Whether a practice is permissible under a given set of facts is thus not legally determinative of whether it is permissible under a different set of facts.
The lead opinion identifies several Michigan-specific factors—the unusually long ballots and the unavailability of both early voting and no-excuse absentee voting—that exacerbate the burdens that the elimination of straight-party voting will have in Michigan. These conditions might not always exist in Michigan. Record evidence implicitly acknowledges this point. For instance, the declaration of Mary Lansdown, the President of the Randolph Institute’s Flint

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Chapter, notes that “the line problems would not be so bad if we had early voting like some states have, or if some people could vote absentee without a reason.”
Moreover, the confusion concern that we have identified could be greatly reduced by, for example, eliminating the party vignettes from the ballots. The continued presence of the vignettes on the ballots certainly appears to be a legislative oversight—perhaps one precipitated by the Michigan legislature’s haste to create a purportedly better-informed electorate. In any event, just because the present record supports the district court’s preliminary injunction maintaining the option of straight-party voting for this November’s general election does not mean that the state must always permit straight-party voting.
For all of the above reasons, I concur in the lead opinion.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 16-2071/2115

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE; MARY LANSDOWN; ERIN COMARTIN; DION WILLIAMS; COMMON CAUSE,
Plaintiffs - Appellees,

FILED
Aug 17, 2016
DEBORAH S. HUNT, Clerk

v.

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

Before: MOORE, GILMAN, and STRANCH, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and submitted on Defendant’s motion and reply, and on the response of Plaintiffs.

IN CONSIDERATION WHEREOF, it is ORDERED that the motion for a stay pending appeal is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 2:16-cv-11844-GAD-MKM Doc # 55 Filed 01/19/17 Pg 1 of 12 Pg ID 1080

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN, ERIN COMARTIN, DION WILLIAMS and COMMON CAUSE,

Case No. 16-cv-11844

Plaintiffs, v.

UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN

RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT [46] I. Introduction Plaintiffs seek leave to file a second amended complaint. The proposed
complaint adds an intentional discrimination claim under the Fourteenth Amendment and a First Amendment claim. The Defendant argues against amendment—that the intentional discrimination claim is redundant and that Plaintiffs fail to state a cognizable First Amendment claim. For the reasons that follow, the Court will GRANT Plaintiffs’ Motion for Leave to File a Second Amended Complaint IN PART and DENY Plaintiffs’ Motion IN PART.

-1-

2:16-cv-11844-GAD-MKM Doc # 55 Filed 01/19/17 Pg 2 of 12 Pg ID 1081
II. Relevant Facts and Procedural History Mary Lansdown, Erin Comartin, Dion Williams, and the Michigan State A. Philip Randolph Institute (“Plaintiffs”) commenced this action against the Michigan Secretary of State, Ruth Johnson (“Defendant”) on May 24, 2016. See Dkt. No. 1. Plaintiffs filed an Amended Complaint on June 1, 2016. Dkt. No. 9.1 Plaintiffs allege that the passage of Public Act 268 (“P.A. 268”) impermissibly burdens the right to vote. On July 22, 2016, this Court issued a preliminary injunction preventing the enforcement of P.A. 268. Dkt. No. 25. Defendant appealed and filed an emergency motion to stay the preliminary injunction. Dkt. Nos. 27–29. On August 17, 2016, the Sixth Circuit denied the Defendant’s emergency motion for a stay pending appeal. Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 659 (6th Cir. 2016). On September 19, 2016, the Sixth Circuit granted the Defendant’s motion to voluntarily dismiss the appeal. Dkt. No. 45. On November 14, 2016, the Plaintiffs filed a Motion for Leave to File a Second Amended Complaint. Dkt. No. 46. On November 15, 2016, the Defendant
1 Plaintiffs inadvertently filed the Amended Complaint as an Answer. Nevertheless because Plaintiffs filed within 21 days of commencing the action, the Court granted the amendment. See FED. R. CIV. P. 15(a)(1)(A); Michigan State A. Philip Randolph Inst. v. Johnson, No. 16-CV-11844, 2016 WL 3922355, Fn. 1 (E.D. Mich. July 21, 2016).
-2-

2:16-cv-11844-GAD-MKM Doc # 55 Filed 01/19/17 Pg 3 of 12 Pg ID 1082
filed an answer to the First Amended Complaint. Dkt. No. 47. The Defendant opposes the proposed Second Amended Complaint.
The First Amended Complaint alleges that the passage of P.A. 268 unlawfully burdens the right to vote according to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, the Voting Rights Act (52 U.S.C. § 10301), and the Americans with Disabilities Act (42 U.S.C. § 12132). The proposed Second Amended Complaint makes three major changes to the first Amended Complaint. First, the proposed complaint adds an intentional discrimination claim under the Fourteenth Amendment of the U.S. Constitution. Second, the Plaintiffs add a First Amendment violation. Third, the proposed complaint removes the Americans with Disabilities Act claim.
III. Standard for Amending Pleadings “[A] party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). “[D]istrict courts have discretion to permit or deny amendment after a defendant files an answer to a plaintiff’s complaint.” United States ex rel. Harper v. Muskingum Watershed Conservancy Dist., 842 F.3d 430, 439 (6th Cir. 2016). “The thrust of Rule 15 is to reinforce the principle that cases should be tried on their merits rather than the technicalities of pleadings.” Tefft v.
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Seward, 689 F.2d 637, 639 (6th Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)).
Despite this liberal amendment policy, denial may be appropriate when there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178 (1962)). Additionally, “[a] proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
In this case, the Defendant does not argue that the proposed Second Amended Complaint is premised on bad faith or undue delay. Therefore, the Court’s analysis will focus on whether the proposed Complaint can survive the motion to dismiss standard articulated in Rule 12(b)(6).
IV. Motion to Dismiss Standard Federal Rule of Civil Procedure 12(b)(6) allows the court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. See FED. R. CIV. P. 12(b)(6). The court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff’s factual allegations present plausible claims. Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555–56 (2007). To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations and quotations omitted).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’ ” Id. Even though the complaint need not contain “detailed” factual allegations, its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
V. Analysis The proposed Second Amended Complaint makes three changes from the previous complaint. First, it deletes the Americans with Disabilities Act claim. In this Court’s Amended Opinion and Order Granting Plaintiffs’ Motion for Preliminary Injunction, the Court concluded, “it does not appear likely that Plaintiffs have standing for their [American with Disabilities Act] claims.” Dkt. No. 25, p. 15 (Pg. ID 720). Accordingly, the Plaintiffs eliminated this claim. The Defendant does not oppose deleting the American with Disabilities Act claim. Subsequently, the
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Court’s analysis focuses on whether the added intentional discrimination claim and First Amendment claim can meet the Rule 12(b)(6) threshold.
A. Intentional Discrimination under the Fourteenth Amendment The original Complaint included an Equal Protection claim that alleges, “[t]he
abolition of straight party voting will disproportionately burden the fundamental right to vote of African American voters”. Dkt. No. 9, ¶ 69 (Pg. ID 415). The proposed Second Amended Complaint adds a second Equal Protection claim that alleges, “[b]oth the discriminatory effect of PA 268, and the history of its passage demonstrate that the statute was passed with the intent to discriminate against African-American voters.” Dkt. No. 46-1, ¶ 85 (Pg. ID 1001). The Defendant argues that the additional Equal Protection claim must be dismissed because it is redundant. The Court disagrees.
Although the precise contours of the Fourteenth Amendment are not always clear, the Sixth Circuit confirms that there are multiple paths to relief through the Equal Protection Clause. In Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 630 (6th Cir. 2016), the Sixth Circuit analyzed two Ohio voting statutes. The statutes required election officials to reject absentee ballots if the address or birthdate did not perfectly match voting records, inter alia. Id. at 619. On appeal, the Sixth Circuit considered three separate equal-protection inquiries: “[w]hether the challenged provisions (1) unduly burden[ed] the right to vote; (2) result[ed] in a lack
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of uniform standards; and (3) were enacted with a discriminatory purpose.” Id. at 630.
In its opinion, the Sixth Circuit demonstrates that multiple Equal Protection claims can co-exist within the same cause of action. First, the Sixth Circuit discussed whether the Ohio statute unduly burdened the right to vote. Id. The Sixth Circuit’s analysis reveals that there is a species of the Equal Protection Clause that applies only when the fundamental right to vote is allegedly infringed. Id. (applying the Anderson-Burdick balancing test to determine whether the Ohio statutes placed an undue burden on voting); see also Obama for America v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (applying the Anderson-Burdick balancing test to determine if an Ohio statute unduly burdened non-military voters).
The Anderson-Burdick balancing test requires courts to weigh the severity of the asserted burden against the state’s justification for the burden. See Ne. Ohio Coal. for the Homeless 837 F.3d at 630 (6th Cir. 2016) (“A court . . . must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.”) (internal quotations omitted). When applying the Anderson-Burdick test, “the level of scrutiny into a challenged election law varies
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based on the severity of its constraint on voting rights.” Id. at 631. “[S]evere restriction[s]” must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). On the other hand, “important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Ne. Ohio Coal. for the Homeless, 837 F.3d at 630. Therefore, the Anderson-Burdick balancing test focuses on the burden on individual voters. In weighing the burden against the state’s justifications, discrimination is a factor to consider when determining the level of scrutiny.
In addition to the Anderson-Burdick test, the Sixth Circuit’s opinion in Northeast Ohio Coalition for the Homeless demonstrates that the traditional Equal Protection framework also remains available in voting and election cases. Id. (applying Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) to determine whether the Ohio legislature intentionally discriminated against voters). “In Arlington Heights, the Supreme Court articulated nonexhaustive evidentiary factors to consider in determining whether official action was undertaken with a discriminatory purpose.” Ne. Ohio Coal. for the Homeless, 837 F.3d at 636.
Although discrimination can play a role in both the Anderson-Burdick test and the Arlington Heights analysis, the two frameworks have different focuses. Anderson-Burdick focus on the burden on individual voters, while Arlington Heights focuses on the intent of the legislature. Northeast Ohio Coalition for the Homeless
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proves not only that both analyses are distinct, but also that the two paths for relief remain concurrently available in voting cases. This Court must follow that example.
In this case, Count I of the proposed Complaint invokes the “fundamental right to vote” while alluding to the Anderson-Burdick standard. Count IV mentions “discriminatory effect” and cites to the Village of Arlington Heights. Dkt. No. 46-1, ¶ 84 (Pg. ID 1001). Precedent demonstrates that both paths are distinct and not redundant. Thus, Plaintiffs’ added intentional discrimination claim is cognizable.
B. First Amendment The First Amendment, which applies to the States through the Fourteenth
Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. Amend. I. “Standards to evaluate justifications by the state of a restriction on speech turn, inter alia, on whether the restriction focuses on content, that is, if it applies to ‘particular speech because of the topic discussed or the idea or message expressed.’ ” Rideout v. Gardner, 838 F.3d 65, 71 (1st Cir. 2016) (quoting Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015)). “Contentbased regulations are subject to strict scrutiny, which requires the government to demonstrate ‘a compelling interest and . . . narrow[] tailor[ing] to achieve that interest.’ ” Id. “Content-neutral restrictions are subject to intermediate scrutiny, which demands that the law be ‘narrowly tailored to serve a significant governmental interest.’ ” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
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“When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828– 29 (1995). “Viewpoint discrimination is thus an egregious form of content discrimination.” Id. “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id.
As best as the Court can tell, the proposed Complaint seems to allege viewpoint discrimination against the Defendant. See Dkt. No. 46-1, ¶ 100 (Pg. ID 1004) (“PA 268 violates the First Amendment because it was enacted by the Republican dominated Legislature, and signed by the Republican Governor, for the purpose of abridging the freedoms of speech and association of Michigan voters, whose political viewpoint, expressed in their disproportionate casting of straight party votes for the Democratic Party differed from theirs.”). Even assuming the nonconclusory allegations to be true, these allegations do not allege the type of egregious, content-based discrimination required for viewpoint discrimination. Instead, Plaintiffs seem to restate an intentional discrimination claim under a First Amendment heading.
The Plaintiffs argue that the “very expression of identification with a particular party and its values is an exercise of speech protected by the First
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Amendment.” Dkt. No. 52, p. 8 (Pg. ID 1069). However, the Plaintiffs fail to cite a single relevant authority to support this argument.
The Plaintiffs’ Motion is only three sentences and fails to mention the First Amendment claim. In their Reply, Plaintiffs cite Foman v. Davis, 371 U.S. 178 (1962), which speaks to whether an opposing party is prejudiced by an amended complaint. Dkt. No. 52, p. 8 (Pg. ID 1069). Prejudice, however, is irrelevant here because the Defendant does not argue that point. Dkt. No. 50, pp. 12–13 (Pg. ID 1048–49). The issue is whether the Plaintiffs stated a cognizable First Amendment claim pursuant to Rule 12(b)(6).
Last, the Plaintiffs quote an excerpt from this Court’s Opinion and Order Granting the Plaintiffs’ Preliminary Injunction—but this is also insufficient. Reciting the Court’s words does not create a First Amendment cause of action, nor does it obviate the Plaintiffs’ obligation to provide relevant, legal justification to survive dismissal.
At this stage—only “a short and plain statement of the claim showing that the pleader is entitled to relief” is required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, Twombly requires this Court to reject conclusory labels and formulaic recitations of elements. Id. In this case, the Plaintiffs’ First Amendment claim is conclusory because it attempts to restate an intentional discrimination claim disguised with formulaic recitations of free speech elements.
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Plaintiffs’ Complaint, briefing and arguments simply do not state a First Amendment

claim that raises a right to relief above a speculative level. Thus, the First

Amendment claim is futile because it does not survive Rule 12(b)(6).

VII. Conclusion

After considering the amendment policy and the pleading standards

articulated in the Federal Rules of Civil Procedure, Plaintiffs’ Motion for Leave to

File a Second Amended Complaint is GRANTED IN PART and DENIED IN

PART. The Amended Complaint will include an intentional discrimination claim

under the Fourteenth Amendment. However, Plaintiffs’ proposed First Amendment

claim is barred.

SO ORDERED.

Dated: January 17, 2017

/s/Gershwin A Drain HON. GERSHWIN A. DRAIN United States District Court Judge

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this date, January 17, 2017, by electronic and/or ordinary mail.

/s/Tanya Bankston Case Manager, (313) 234-5213

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, COMMON CAUSE, MARY LANSDOWN, ERIN COMARTIN, and DION WILLIAMS,

Plaintiffs, v.

No. 2:16-cv-11844 Hon. Gershwin Drain

RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

Defendant. _________________________________________/

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

NOW COME Plaintiffs Michigan State A. Philip Randolph Institute, Common

Cause, Mary Lansdown, Erin Comartin and Dion Williams (collectively “Plaintiffs”),

by and through their attorneys, Goodman Acker, P.C. and Sachs Waldman, P.C., and

for their Second Amended Complaint pursuant to FRCP 15(a)(2)(A) for declaratory

and injunctive relief against Defendant Ruth Johnson, in her official capacity as

Michigan Secretary of State, state as follows:

INTRODUCTION

1. This is an action pursuant to 42 U.S.C. §1983, Section 2 of the Voting

Rights Act of 1965, 52 U.S.C. § 10301, to secure declaratory and injunctive relief for

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the unlawful deprivation of rights, privileges and immunities secured by the Constitution and laws of the United States. Plaintiff citizens and voters of Michigan will be harmed by the discriminatory and burdensome provisions of Michigan’s 2015 Public Act 268 (Exhibit 1) which eliminated the ability of Michigan voters to cast a straight party vote if they so chose, an option which they had enjoyed for 125 years and which at least half of them had used in recent elections. The elimination of straight-party (or straight ticket) voting, relied upon by millions of Michigan voters, will make it unreasonably harder for those voters to vote. This elimination will result in longer lines, more congestion and more confusion in polling places on Election Day as well as confusion among absentee voters, further unreasonably burdening the right to vote of all voters in Michigan, and will consequently disenfranchise tens of thousands of voters. Lines and waiting times will increase even more in jurisdictions with larger minority populations, as minority voters have used the straight party voting option at a much higher rate. Plaintiff voters will be denied equal protection of the law and the equal right to vote, in violation of the Fourteenth Amendment of the United States Constitution. Further, 2015 PA 268 will more detrimentally affect African-American voters, reducing their opportunity more than that of white voters to participate in the electoral process and to elect representatives of their choice, in denial or abridgement of their right to vote under §2 of the Voting Rights Act.
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Plaintiffs seek declaratory and preliminary and permanent injunctive relief preventing Defendant from implementing the provisions of 2015 PA 268 abolishing straight party voting.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1343(a)(3) and 1357; and 42 U.S.C. §§ 1983 and 1988. 3. This Court has authority to issue declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 4. Venue is this district is proper pursuant to 28 U.S.C. § 1391(b). 5. This action is timely brought, 2015 PA 268 having been signed into law on January 5, 2016, and it will ban straight party voting beginning with the November 8, 2016 general election.
PARTIES 6. Plaintiff Michigan State A. Philip Randolph Institute (MI APRI) is the Michigan division of the national A. Philip Randolph Institute, the senior constituency group of the AFL-CIO dedicated to advancing racial equality and economic justice. Founded by A. Philip Randolph and Bayard Rustin, APRI grew out of the legacy of African-American trade unionists’ advocacy for civil rights and the passage of the federal Voting Rights Act and it continues to advocate for social, political and
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economic justice for all working Americans. MI APRI is a statewide organization with 10 local chapters across the state: Battle Creek, Detroit Metro, Detroit Downriver, Flint, Grand Rapids, Kalamazoo, Lansing, Muskegon, Saginaw and Southwest (Benton Harbor). MI APRI has members who are registered voters across Michigan. MI APRI works to increase access to the polls, voter registration and voter education, particularly among working class African Americans.
7. Plaintiff Common Cause is a nonprofit corporation organized and existing under the laws of the District of Columbia. It is one of the nation’s leading democracy organizations and has over 400,000 members and chapters in 35 states, including over 19,535 members and supporters in Michigan. Since its founding in 1970, Common Cause has been dedicated to the promotion and protection of the democratic process, including the right of all citizens, including its eligible members, to vote in fair, open, and honest elections. Common Cause, at the national level and in Michigan, conducts significant nonpartisan voter protection, advocacy, education, and outreach activities to ensure that voters are registered to vote and have their ballots counted as cast. Common Cause is also a proponent of policies, practices, and legislation – such as same day registration and early voting – that facilitate voting for eligible voters and ensure against disenfranchisement. Common Cause is an opponent of efforts that burden registration and/or voting, including restrictive voter
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identification laws, partisan gerrymandering, and any other effort, including the one at hand in Michigan, to suppress voter participation.
8. Plaintiff Mary Lansdown is a 77 year old African-American, a life-long resident of Flint and a registered voter in Flint. She has been active in her community for many, many years. She is active in the AARP Flint Chapter and the Genesee County Community Action and is currently President of the Flint Chapter of the A. Philip Randolph Institute. She is active in her church. One of the things they are most involved with is trying to get people to vote. They do voter registration, GOTV (Get Out The Vote) drives and voter education.
9. Plaintiff Erin Comartin is a registered voter in West Bloomfield Township in Oakland County. She is white, a professor of social work at Oakland University and a social justice activist interested in voting rights. She is concerned about the impact of 2015 PA 268 on her rights and the rights of others to vote.
10. Plaintiff Dion Williams is a registered voter in Detroit. An AfricanAmerican, he uses the straight party option and is active in Detroit elections. He is concerned about the impact of 2015 PA 268 on his rights and the rights of others to vote.
11. Defendant Ruth Johnson is the Michigan Secretary of State, Michigan’s “chief election officer,” M.C.L. §168.21, and is being sued in her official capacity.
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FACTUAL ALLEGATIONS The Administration of Elections in Michigan 12. Michigan has the most decentralized election system in the country. Administration of elections is divided among 1,602 county, city, township and village clerks. The Secretary of State is the “chief election officer,” with “supervisory control” over these local officials. M.C.L. §168.21. 13. Michigan’s 83 county clerks have limited responsibilities with regard to elections. They provide advice to the city and township clerks in their counties, are responsible for the printing of ballots, provide training to election inspectors in some of the jurisdictions, program all of the voting equipment used in all county jurisdictions, and, in some elections, canvass the votes. 14. Cities, townships and villages, particularly cities and townships, are responsible for the administration and supervision of all elections, and for all of the expenses of those elections, including purchasing voting booths, ballot tabulators, and all other supplies, hiring election inspectors, and in the larger jurisdictions training them, obtaining space for thousands of polling places and paying the cost where necessary, tabulating millions of ballots and, in some elections, canvassing the results, among many other functions. 15. The financial and personnel resources available to counties, cities,
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townships and villages to administer elections vary considerably, as those jurisdictions range from very affluent communities to financially distressed ones, including Detroit, only recently emerging from bankruptcy, and communities such as Flint and Pontiac which are under such financial stress that the State of Michigan has intervened in their management. See City of Detroit, U.S. Bankruptcy Court, E.D. Mich. No. 1353846; Michigan Dept. of Treasury, Local Government Fiscal Health, http://www.michigan.gov/documents/treasury/EM- EFM_Appointment_History_212-16_514604_7.pdf (detailing history of all cities and school districts found to suffer financial distress and subject to state intervention).
16. To vote at the polls on Election Day, Michigan voters must provide a valid photo ID if they have one and complete and sign a paper application showing their residence address. M.C.L. §168.523(1). Upon confirmation that they are registered to vote in that precinct, id. (2), (3), they are issued an optical scan ballot and directed to a voting booth where they vote secretly. When they have finished voting their ballot by filling in the ovals or completing the arrows (depending on the type of voting tabulators used), they are directed to the single ballot tabulator for their precinct where they insert their ballot for counting. If they have made an error which the tabulator is programmed to catch, such as overvoting for an office (casting more than the permissible votes for that office), the tabulator rejects the ballot, giving the
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voter an opportunity to correct this error. 17. According to a national study, Michigan already has the 6th longest
average waiting time to vote in the country – nearly 20 minutes. See Stewart, “Managing Polling Place Resources,” Caltech/MIT Voting Technology Project at 6 & Appendix (2012) (copy attached as Exhibit 2). This study is “highly recommend[ed]” to Michigan local clerks by Christopher Thomas, longtime Director of the State’s Bureau of Elections. See Exhibit 3.
18. According to the same national study, minority voters wait twice as long on average as white voters to vote, and voters in densely populated areas wait, on average, 3 times longer to vote than voters in less densely populated areas. Exhibit 2 at 7-8. Michigan’s experience mirrors or exceeds these national averages. Presidential election years have seen waiting times as long as 2½ to 5 hours in Detroit, 4 hours in Grand Rapids and over an hour in Ann Arbor according to media reports [collected as Exhibit 4]. A representative of Defendant Johnson acknowledged a 2½ hour wait at a Detroit polling location in 2008. See id.
19. In January, 2014, a bipartisan commission, appointed by President Obama and co-chaired by Robert F. Bauer, Counsel to the Obama 2102 campaign, and Benjamin L. Ginsberg, Counsel to the Romney 2012 campaign, issued its report, “The American Voting Experience: Report and Recommendations of the Presidential
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Commission on Election Administration.” Christopher Thomas, Director of the Bureau of Elections in the office of the Michigan Secretary of State, was a member of this commission. (Exhibit 5)
20. The Report set forth numerous statutory changes and improved practices designed to improve the voting experience and reduce the length of lines so that no voter would need to wait longer than half an hour to vote. (Exhibit 5, at 6) Michigan has adopted none of these recommendations for election improvement.
The Long Michigan Ballot 21. Michigan voters directly elect over 19,000 federal, state and local officials, see Citizens Research Council of Michigan, “The Long Ballot in Michigan” (1984) at 1, and also have the right to vote on state and local ballot questions, see Mich. Const. 1963, Art. II, §9; Art. XII. 22. For these reasons all jurisdictions in Michigan have long ballots and the largest jurisdictions in the largest counties have the longest ballots because of the number of judicial offices on which citizens vote. For example, in Detroit in Wayne County voters in 2016 will be voting on 37 judicial offices. In Houghton in Houghton County, voters will be voting on only 4 judicial offices. 23. Non-partisan school board elections also create longer ballots. In the November, 2016, election Detroit voters will be asked to vote for not more than 7
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school board members from among 62 candidates. 24. Michigan has also been engaged in a 10 year effort of election
consolidation, which moved school board elections to the even year November general election and allowed cities to move their elections to the even year November general election ballot. The Bureau of Elections has stated that it is feasible that all elective offices will be on the even year November election ballot and that, “It’s safe to say Michigan could be the only state that moves in this direction, resulting in the longest ballot in the nation.” Michigan Bureau of Elections News Update for Elections Administrators, September 23, 2016, attached hereto as Exhibit 18.
25. Michigan ballots are 18-22” long and 8-9¾” wide, accommodating 3 columns of offices and ballot questions on both sides. It is very common for both sides to be filled, see, e.g., Exhibits 6-8 attached hereto, and in 2012 the City of Detroit had a ballot of 2 full 2-sided sheets, attached hereto as Exhibit 9.
Straight Party Voting in Michigan, 1892-2016 26. Since 1891, Michigan voters have had the option to vote for all of the candidates of a political party in partisan general elections by making a single selection at the top of their ballot, known as straight ticket or straight party voting. No voter is required to use it and a voter can override that choice in any given race and vote a so-called “mixed ticket” simply by voting for a candidate from another
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party or an independent candidate. See 1891 PA 190, §14, codified in M.C.L. §§ 168.736c, 168.782b, 168.795c, 168.803 and 168.804. This is how the straight party ticket voting option appears at the top of Michigan general election ballots:
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27. Straight party voting has been a fixture in Michigan elections. It predates other well-established election procedures such as primary elections, compare 1891 PA 190 § 10 (all candidates nominated at political party conventions) with 1909 PA 281 (establishing primary elections in certain situations), and absentee voting, see 1915 PA 270 (first establishing right of certain voters to vote by absentee ballot).
28. Beginning in 1892, tens of millions of Michigan voters have used the straight party voting option without complaints or problems. It shortened lines and eased congestion in polling places on Election Day by allowing voters who chose to use it to vote the partisan section of their ballot more quickly with one mark instead of 18 to 32. It allowed absentee voters to complete their ballots more quickly with one mark instead of 18 to 32. It saved money in election administration.
29. In 1964 the Legislature attempted to abolish the right to straight party voting by enacting 1964 PA 240. Michigan voters exercised their State Constitutional right to referendum and rejected PA 240 by a margin of 1,515,875 (66%) to 795,546 (34%) at the November, 1964 General Election.
30. After 1964 tens of millions of Michigan voters continued to use the straight party voting option without complaints or problems. It continued to shorten lines and ease congestion in polling places, and to allow absentee voters to complete their ballots more quickly. It saved money in election administration.
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31. In 2001 the Legislature ignored the will of the voters and again attempted to abolish the straight ticket voting option by enacting 2001 PA 269. Michigan voters again exercised their State Constitutional right of referendum and rejected PA 269 by a margin of 1,775,043 (60%) to 1,199,236 (40%) at the November, 2002 General Election.
32. Since 2002 millions of Michigan voters continued to use the straight party voting option without complaints or problems. It continued to shorten lines and ease congestion in polling places, and to allow absentee voters to complete their ballots more quickly. It saved money in election administration.
33. In Michigan United Conservation Clubs v. Secretary of State, 464 Mich. 359 (2001), the Michigan Supreme Court effectively abolished the State Constitutional right of referendum, Mich. Const. 1963, Art. II, § 9, rejecting the longstanding interpretive principle that the right had to be construed so as to preclude legislative evasion or parry, and holding that the Legislature could evade and parry a referendum by simply attaching any appropriation to a bill.
34. In December, 2015 the Legislature again ignored the will of the voters and again abolished the straight party voting option by enacting 2015 PA 268. (Exhibit 1) Michigan voters were unable to exercise their State Constitutional right of referendum to reject PA 268, as they had previously rejected straight party voting
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bans, because the Legislature added an appropriation to PA 268, thereby blocking a referendum.
35. Currently, approximately 50% of all Michigan voters use the straight party voting option and 75-80% of African-American voters use it. See Exhibit10, Kurt Metzger Expert Report [hereinafter “Metzger Report”]; Exhibit 13 at 3.
36. Absent the declaratory and injunctive relief sought here, 2015 PA 268 will eliminate the voters’ ability to cast a straight party vote beginning with the general election on November 8, 2016. At that election, for the first time in 125 years, the millions of Michigan voters who have regularly chosen to vote straight party will no longer have the ability to cast a straight party vote on the partisan section of the ballot.
Legislative History of 2015 PA 268 37. On a handful of session days during the last few weeks of the 2015 legislative session, the Michigan Legislature took rapid action, with little public input, to abolish Michigan voters’ 125 year-old option to cast a straight party vote. 38. Senate Bill 13 abolishing straight party voting was first introduced in the Senate on January 20, 2015. No action occurred for nearly ten (10) months. (Michigan Legislature record of actions on SB 13, Exhibit 11.) 39. On November 10, 2015, a Senate committee voted SB13 out in the
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morning, having conducted no hearings, and the full Senate passed it that afternoon. According to the Senate Legislative Analysis, SB13, November 10, 2015 (Exhibit 12), the Department of State said that the elimination of straight ticket voting could “cause an increase in the time it takes to vote due to voters’ reading the new instructions as well as having to mark their vote for each candidate. . . As a result, it could become necessary for local units of government to purchase additional voting booths.” At 4. Amendments which would have eased congestion in polling places by allowing early voting and no reason absentee voting were rejected. The Legislature adjourned that same day for its 3-week hunting season and Thanksgiving break.
40. A House committee took up SB13 on December 3, 2015, and again on December 8, 2015, when the Legislature reconvened after the weekend and voted SB13 out that day. Amendments were again rejected. The next day the full House passed SB13, linking it to legislation allowing no-reason absentee voting. See Exhibit 11.
41. On December 16, 2015, the Senate, after locking down the Senate and barring Senators from leaving the chamber under penalty of arrest, rejected linking SB13 to no-reason absentee voting. The House concurred that same day and the bill was sent to the Governor for his signature which occurred on January 5, 2016, and SB13 was enrolled as 2015 PA 268.
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42. SB13 was opposed by The Michigan Association of Municipal Clerks, The Michigan Association of County Clerks, and The Michigan Townships Association, among others. The Secretary of State was “neutral.” House Legislative Analysis, SB 13, December 9, 2015. (Exhibit 13 at 6)
43. According to the House Legislative Analysis, “Proponents of this bill believe that eliminating the option to vote straight-ticket will encourage voters to vote more deliberately.” (Exhibit 13 at 2)
44. According to the House Legislative Analysis, “City and county clerks testified that the average wait time to vote in Michigan is already 22 minutes, and that this measure could double that wait.” Clerks also testified that the number of spoiled ballots would increase, causing still longer lines and more frustration. (Exhibit 13 at 5).
45. Clerks testified before the Legislature that the bill would have a disproportionately negative impact on minority communities, and particularly on African-American voters. (Exhibit 13 at 5) Not a single African-American member of the House or Senate voted in favor of SB13.
46. While eliminating the option of straight party voting, the Legislature did not eliminate the provision in the Michigan election law, M.C.L. § 168.684, which requires the printing of party vignettes on the ballot.
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47. The Michigan Bureau of Elections has directed the county clerks to print party vignettes across the top of the ballot, as shown here:
The Adverse Effects of Eliminating Straight Party Voting Generally 48. On and before November 8, 2016, and at general elections thereafter, millions of Michigan voters who previously exercised the option to cast a straight party vote on an absentee ballot or at the polls will be denied its use and confused by its absence.
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49. Straight party voting helps voters cope with the long Michigan ballot, see Paragraphs 20-22 supra. Without it, voting the entire ballot will become more difficult and time-consuming, adding to congestion, longer lines, and longer waiting times in polling places. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope, and Mary Lansdown, collected at Exhibit 14.)
50. The confusion resulting from the elimination of straight party voting will be exacerbated by the printing of party vignettes across the top of the ballot, as shown in ¶44, above, which will serve no purpose but to confuse the voter.
51. County clerks reviewing the new ballot format stated that this was certain to cause great confusion and that they expect voters, used to being able to vote straight party, will circle the party they want or otherwise mark it, as they will see no other reason for displaying the vignettes on the ballot. (Exhibit 14, Declaration of Joseph Rozell ¶18; Exhibit 15, May 23, 2016 Gongwer Report)
52. The elimination of straight party voting will result in more voting errors, more spoiled ballots, and more requests for assistance from election officials and/or from friends or family, all resulting in more delays and increased anger and frustration. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown)
53. Michigan already has the 6th longest average waiting time to vote in the
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country – nearly 20 minutes--and many urban and African-American voters wait in line for hours to vote. See Paragraphs 16-17 supra. On November 8, 2016, and at general elections thereafter, waiting time will increase and lines will lengthen because millions of voters, deprived of the ability to cast a straight party vote, will take longer to vote their ballot than previously. (Declarations of Joseph Rozell, Daniel A. Baxter and Chris Swope)
54. For the November 8, 2016, election, the State of Michigan and county, city and township clerks will have to incur the expense of redesigning ballots to eliminate the straight party voting option.
55. On and before November 8, 2016, and at general elections thereafter city and township clerks who administer Michigan’s elections will have to spend additional funds to educate voters about the lack of a straight party voting option, to hire additional staff, to provide extra training to the existing and additional staff, and to purchase additional voting equipment and supplies in efforts to ameliorate the congestion and longer lines created by the lack of a straight party voting option. Nevertheless, election officials and others do not anticipate that their efforts will be able to overcome the numerous difficulties created by the abolition of straight party voting. (Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown, Exhibit 14)
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56. Clerks testified before the Legislature that they would need an estimated $30 million for equipment alone to address the impact of PA 268. (Exhibit 13 at 5) The final bill included an appropriation of only $5 million”to purchase voting equipment to implement the elimination of straight party ticket voting.” See 2015 PA 268, § 795c(2). However, the State of Michigan has advised local election officials that the $5 million will not be used to offset the costs of eliminating straight party voting. (Declaration of Joseph A. Rozell) In fact, the entire cost of attempting to address the impact of eliminating straight party voting will be borne by the cities and townships.
The Disproportionate Impact on African-American Voters and on Plaintiffs of Eliminating Straight Party Voting 57. The adverse effects of eliminating straight party voting will be imposed disproportionately on African-American voters and in polling places that serve predominantly African-American voters because African-American voters disproportionately utilize straight party voting. (Metzger Report, Exhibit 10, pp. 1, 9-12). 58. African-Americans in Michigan have long endured illegal discrimination in such areas as education, employment and housing. See, e.g., Sipes v. McGhee, 334 U.S. 1 (1948) (housing); Bradley v Milliken, 418 U.S. 717 (1974); (education); Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir., 1971), cert. denied, 404
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U.S. 913 (1971) (education); Stamps v. Detroit Edison, 365 F. Supp. 87 (E.D. Mich., 1973) (employment); Garrett v. City of Hamtramck, 335 F. Supp. 16 (E.D. Mich., 1971) (housing). African-Americans in Michigan suffer from higher poverty and unemployment rates, and lower income and education levels than whites. See Metzger Report (Exhibit 10).
59. A recent study of housing segregation patterns has concluded that Detroit and its surrounding cities constituted the second most segregated metropolitan area in the United States, based on an analysis of race by zip code showing that 18 of the area’s zip codes are more than 80% black. http://247wallst.com/specialreport/2016/09/08/americas-most-segregated-cities-2/ Another recent study has concluded that Detroit is the most segregated city. http://atlantablackstar.com/2014 /03/24/10-of-the-most-segregated-cities-in-the-u-s/.
60. Elections in Michigan have been characterized by racially polarized voting, with African-Americans voting for Democratic party candidates at a significantly higher rate than do white voters.
61. Political campaigns in Michigan have been characterized by covert and subtle racial appeals including discriminatory campaign tactics designed to discourage the ability of African-Americans to participate in the political process. For example:
a. On August 9, 2012 the Finance Chair of the Republican National
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Committee and former Michigan Republican Party Chair (a 2016
candidate for University of Michigan Regent) Ron Weiser spoke
to a Republican Party meeting in suburban Detroit about Detroit’s
African-American voters:
“Secondly, no Coleman Young machine. No Kwame Kilpatrick machine. There is no Dave Bing machine. There’s no machine to go to the pool halls and the barbershops and put those people on buses and then bus them from precinct to precinct where they vote multiple times. And there’s no machine to get ‘em to stop playing pool and drinking beer in the pool hall. And it does make a difference. …
“Obama has hired a lot of people to go help him get that vote out. But if you’re not from Detroit, the places where those pool halls and barbershops are, you’re not going to be going at 6:30 in November. Not without a side arm.”
Exhibit 16.
b. On July 16, 2004 Republican State Representative John
Pappageorge told the Detroit Free Press that “[i]f we do not
suppress the Detroit vote, we’re going to have a tough time this
election.
Exhibit 17.
62. Elected officials in Michigan demonstrate a lack of responsiveness to the
interests of African-American communities. See, e.g, Flint Water Advisory Task
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Force, “Final Report” at 54 (March, 2016) (“The facts of the Flint water crisis lead us to the inescapable conclusion that this is a case of environmental injustice. Flint residents, who are majority Black or African American and among the most impoverished of any metropolitan area in the United States, did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities. Moreover, by virtue of their being subject to emergency management, Flint residents were not provided equal access to, and meaningful involvement in, the government decision-making process.”).
63. There is a significant history and ongoing pattern of discrimination in education, housing and employment in Michigan which causes African-Americans as a group to be less well-educated, less well-housed, lower-paid, and more likely to live in poverty than their white counterparts. See Metzger Report (Exhibit 10). Past and ongoing discrimination in these areas causes higher rates of poverty amongst AfricanAmericans. See id.
64. There is a significant educational achievement difference between nonHispanic whites and African-Americans in Michigan. The statistics for persons 25 and older in 2014 showed the following: 47% of African-Americans compared to 38.5% of whites had only a high school education or less; 16.9% of AfricanAmericans compared to 28.4% of whites had a bachelor’s degree or more. (Metzger
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Report, Exhibit 10, at pp. 13-14, 21) 65. Studies have established a direct correlation between low educational
achievement, low income, and low literacy levels. According to the 2003 report (the most recent available) on adult literacy, by the National Center on Educational Statistics, 12% of the adults in Wayne County lacked basic literacy skills. https://nces.ed.gov/naal/estimates/StatesEstimates.aspx.
66. Current and past discrimination hinder the ability of African-American voters to participate effectively in the political process. African-Americans register to vote and vote at lower rates than whites. (Metzger Report, Exhibit 10).
67. Plaintiffs, including the A. Phillip Randolph Institute and their members, Common Cause and their members, and individual plaintiffs, have been and will be injured by the Secretary of State’s enforcement of PA 268. This act nullifies the efforts of the A. Phillip Randolph Institute to enhance voter participation and protect the vote in Michigan. Common Cause, for example, engages in election protection efforts in Michigan at each federal election cycle through use of the 1-866-OURVOTE hotline and Election Protection program, spearheaded by the Lawyers’ Committee for Civil Rights Under Law. As part of that work, Common Cause leads grassroots efforts to ensure that polling places throughout the state are staffed with a sufficient number of volunteers to assist eligible voters in getting the information they
24

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need (on their registration status, polling location, etc.) and trouble-shooting and responding as incidents arise. Common Cause anticipate that, due to much voter confusion over PA 268, many calls will be made to the hotline and additional Common Cause workers will need to be deployed to polling sites to assist with questions and raise concerns with elections officials as they arise. Such renewed commitment may require expenditure of additional resources and may divert the organization from other needed democracy work.
The Disproportionate Impact on Democratic Party Voters and on Plaintiffs of Eliminating Straight Party Voting
68. The ability to cast a straight party vote allows a voter to express his/her preference not only for candidates but also for a political party, its platform, ideals and values.
69. Voters in Michigan have twice expressed, by their votes in referendum elections following earlier attempts to eliminate straight party voting, that they want the ability to declare their party association by making a single mark for all candidates of that party.
70. Eliminating the option of straight party voting deprives Michigan voters of a means by which they can express their party association and support.
71. While voters from all parties in Michigan choose to vote straight party,
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more voters choose to cast a straight party vote for the Democratic Party than for the Republican Party.
72. The Michigan Legislature passed PA 268 to eliminate voting because more of the voters casting straight party votes cast them for the Democratic Paraty than for the Republican Party.
COUNT I – VIOLATION OF EQUAL PROTECTION UNDER 14TH AMENDMENT
73. Plaintiffs incorporate by reference paragraphs 1 - 72 hereof as if set forth word for word.
74. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits states from denying to any person the “equal protection of the laws.” U.S. Const. amend XIV, § 1.
75. The Fourteenth Amendment prohibits states from burdening the fundamental right to vote and the Supreme Court has set out the analysis to be applied:
{A} court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to
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burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). “This standard is sufficiently flexible to accommodate the complexities of state election regulations while also protecting the fundamental importance of the right to vote.” Obama for America v. Husted, 697 F.3d 423, 429 (6th Cir., 2012).
76. Plaintiffs’ right to vote is heavily burdened by the arbitrary and irrational abolition of the option of straight party voting after 125 years without complaint or problem. Millions of Michigan voters have relied upon this method of voting and will be denied the opportunity to continue to do so. As a result of the abolition of straight party voting, lines, congestion and confusion will increase at polling places, affecting all voters, but affecting African-American voters more . (Exhibit 14, Declarations of Joseph Rozell, Daniel A. Baxter, Chris Swope and Mary Lansdown, and Metzger Report)
77. Long lines at polling places discourage voting, reduce voter confidence in elections and impose other costs on voters. See Stewart, supra, at 1,11-12 (Exhibit 2).
78. The abolition of straight party voting serves no state interest: it will increase the cost of elections, not reduce it; it will increase voter confusion; not reduce
27

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it; it will increase congestion and long lines at the polling places, not reduce them; it will decrease voter participation, not increase it and it will reduce voter confidence in elections, not increase it.
79. The abolition of straight party voting will burden the fundamental right to vote of all Michigan voters in violation of the Fourteenth Amendment.
80. The abolition of straight party voting will disproportionately burden the fundamental right to vote of African-American voters, in violation of the Fourteenth Amendment.
COUNT II – VIOLATION OF EQUAL PROTECTION UNDER 14TH AMENDMENT
81. Plaintiffs incorporate by reference paragraphs 1 – 80 hereof as if set forth word for word.
82. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits states from denying to any person the “equal protection of the laws.” U.S. Const. amend XIV, § 1. This provision prohibits a state and its officials from discriminatorily or arbitrarily treating qualified voters differently on account of their race or skin color.
83. A motivating purpose behind the enactment of PA 268 was to create confusion and longer lines in jurisdictions with large populations of African-American
28

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voters, recognizing that those voters rely disproportionately on the option of straight party voting, and recognizing that its elimination would inevitably cause decreased turnout in those jurisdictions by deterring voters from voting.
84. The discriminatory effect of a statute and the legislative history regarding its passage are relevant factors in determining whether the statute was passed with discriminatory intent. Village of Arlington Heights v Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
85. Both the discriminatory effect of PA 268, and the history of its passage demonstrate that the statute was passed with the intent to discriminate against AfricanAmerican voters.
COUNT III – VIOLATION OF THE VOTING RIGHTS ACT § 2 86. Plaintiffs incorporate by reference paragraphs 1-85 hereof as if set forth word for word. 87. Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301(a), provides: No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. 88. African-American citizens in Michigan, as a group, disproportionately use straight party voting more than white citizens. (Metzger Report, Exhibit 10, pp.
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9-10). 89. African-American citizens in Michigan, as a group, have, as a result of
discrimination in housing, employment and education, a significant educational achievement deficit. More African-Americans have only a high school degree or less. Fewer African Americans have a bachelor’s degree or more. (See Metzger Report, Exhibit 10, pp. 13-14, 21)
90. The elimination of straight ticket voting will cause disproportionately longer lines and waiting times for African-American voters than for white voters both because the disproportionately higher rate of straight party voting which will result in more people taking more time to vote, and also because low literacy, associated with the educational achievement gap and the other factors cited above, will cause an even greater increase in the time to vote among African-American voters.
91. 2015 PA 268’s abolition of straight party voting will have the effect of suppressing the votes of African-American voters in violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301(a).
92. 2015 PA 268’s abolition of straight party voting will result in the denial or abridgement of the right to vote of the individual Plaintiffs and others on account of race or color in violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301(a).
93. The abolition of straight party voting will interact with social and 30

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historical conditions – which are themselves largely due to discrimination in areas such as education, employment, housing, health services, and voting – to cause an inequality in the opportunities enjoyed by African-American and white voters to elect their preferred representatives.
94. Under the totality of the circumstances, the abolition of straight party voting will result in the dilution of African-American voting strength and the denial of African-Americans’ fundamental right to vote in violation of §2 of the Voting Rights Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask that the Court: 1. Declare that the challenged provisions of 2015 PA 268 abolishing straight party voting: a. Violate the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution by unreasonably burdening the right to vote of all Michigan citizens; b. Violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by unreasonably and disproportionately burdening the right to vote of African-American citizens; c. Violate Section 2 of the Voting Rights Act of 1965 by denying and abridging the right to vote of African-Americans because of their race
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and color;

2. Declare that the rights and privileges of Plaintiffs and other citizens will be

irreparably harmed without the intervention of this Court to secure those rights

for the exercise thereof in a timely and meaningful manner; and

3. Enjoin preliminarily and permanently the Defendant, her agents, officers and

employees, and all persons acting in concert or cooperation with her from

enforcing or giving any effect to the provisions of 2015 PA 268 that prohibit

straight party voting; and

4. Award Plaintiffs their costs, disbursements and reasonable attorneys’ and

experts’ fees incurred in bringing this action pursuant to 42 U.S.C. §§ 1988 and

52 U.S.C. § 10310(e); and

5. Grant such other relief as the Court deems just and proper.

Respectfully submitted,

SACHS WALDMAN, P.C.

GOODMAN ACKER, P.C.

/s/ Mary Ellen Gurewitz Mary Ellen Gurewitz (P25724) 2211 E. Jefferson Avenue Detroit, MI 48207 (313) 965-3464 megurewitz@sachswaldman.com
Dated: January 26, 2017

/s/ Mark Brewer Mark Brewer (P35661) 17000 W. Ten Mile Road, 2nd Floor Southfield, MI 48075 (248) 483-5000 mbrewer@goodmanacker.com

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Clerk of the Court using the ECF system on January 26, 2017, which will send notice of this filing to all registered parties via electronic transmission.
SACHS WALDMAN, P.C. /s/ Mary Ellen Gurewitz Mary Ellen Gurewitz (P25724) 2211 East Jefferson Avenue, Suite 200 Detroit, MI 48207 (313) 496-9420 megurewitz@sachswaldman.com
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 2:16-cv-11844-GAD-MKM Doc # 124 Filed 01/19/18 Pg 1 of 42 Pg ID 2781

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN, ERIN COMARTIN, DION WILLIAMS and COMMON CAUSE,

Case No. 16-cv-11844

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN

v.
RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant. /

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [102]
I. Introduction

The Plaintiffs—Mary Lansdown, Erin Comartin, Dion Williams, the

Michigan State A. Philip Randolph Institute, and Common Cause—challenge Public

Act 268 (“PA 268”). They allege that this state law violates the Equal Protection

Clause of the Fourteenth Amendment because it restricts the right to vote (Count I)

and reflects intentional discrimination on the part of the Michigan State legislature

(Count II). Plaintiffs also allege that this law contravenes Section 2 of the Voting

Rights Act, 52 U.S.C. § 10301 (Count III). The Defendant is Ruth Johnson, in her

official capacity as Michigan Secretary of State (“the Secretary”).

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Presently before the Court is the Secretary’s Motion for Summary Judgment [102], filed on October 16, 2017. The motion is fully briefed. A hearing on this motion was held on Tuesday, January 16, 2018 at 2:00 p.m. For the reasons discussed herein, the Court will DENY the Defendant’s Motion for Summary Judgment [102]. All of Plaintiffs’ claims will survive the motion.1 The Court finds that Plaintiff Erin Comartin lacks standing, however. II. Background
PA 268 eliminates straight-party voting in Michigan. See 2015 PA 268. Straight-party voting entails filling in one bubble for a particular political party, and thereby voting for that party in each partisan contest on the ballot. Dkt. No. 56, p. 10 (Pg. ID 1101). This option allows voters to forego filling in a bubble for each partisan candidate individually. Id. PA 268 only changes the ballot format by removing the straight-party option; it will keep party vignettes at the top left of the ballot. Id. at p. 18 (Pg. ID 1109).
Michigan voters have had the option of straight-party voting for 126 consecutive years. See 1891 PA 190, § 14. And they have twice repealed via referendum laws that eliminated straight-party voting—in 1964 and again in 2001.
1 The Defendant moved to strike certain affidavits filed in conjunction with the Plaintiffs’ response to the summary judgment motion. See Dkt. No. 113. Based on the Court’s ruling on the Defendant’s Motion to Strike, the Court will not consider here the Lisa Brown affidavit, paragraph four of the Allegra Chapman affidavit, and paragraph five of the Anita Dawson affidavit. See Dkt. Nos. 108-7, 108-14, 109.
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See 1964 PA 240; see also 2001 PA 269. PA 268 cannot be repealed by referendum because it provides for an appropriation of $5 million. See Mich. United Conservation Clubs v. Sec’y of State, 464 Mich. 359, 630 N.W.2d 297, 298 (2001).
A. Procedural History The Governor of Michigan signed PA 268 into law in January 2016, and the law was to take effect in the November 2016 elections. See Dkt. No. 102-8; see also 2015 PA 268. Yet in May 2016 the Plaintiffs filed a Complaint in this Court claiming that the bill unlawfully restricted the right to vote pursuant to the Equal Protection Clause, and violated Section 2 of the Voting Rights Act and the Americans with Disabilities Act. See Dkt. No. 1. Three days after filing the Complaint, Plaintiffs moved for a preliminary injunction to prevent the implementation of PA 268. Dkt. No. 4. The Court granted Plaintiffs’ request for a preliminary injunction, finding that the Plaintiffs were likely to succeed on the merits for their Equal Protection and Voting Rights Act Claims.2 See Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935 (E.D. Mich. 2016) (“Johnson I”). The Defendant then (1) filed a notice of appeal of this Court’s Opinion and Order granting Plaintiffs’ preliminary injunction; and (2) requested that this Court
2 Plaintiffs amended the Complaint in January 2017, and pursuant to the Court’s holding that they likely lacked standing under the Americans with Disabilities Act, Plaintiffs did not include this claim in the Amended Complaint. See Dkt. Nos. 55, 56. Plaintiffs added the intentional discrimination claim, Count II, in the Amended Complaint. See Dkt. No. 56.
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stay its grant of Plaintiffs’ Motion for a Preliminary Injunction pending appeal. See Dkt. Nos. 27, 29. On August 1, 2016, the Court issued a revised Order for Preliminary Injunction. See Dkt. No. 30. The Secretary responded by filing a second notice of appeal, this time as to the revised Order. See Dkt. No. 33. And, on August 15, 2016 this Court denied Plaintiffs’ request to stay the Order granting Plaintiffs’ Motion for Preliminary Injunction pending appeal. See Dkt. No. 39. Two days later the Sixth Circuit denied the Secretary’s Motion for a Stay Pending Appeal. Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 659 (6th Cir. 2016) (“Johnson II”).
B. Evidence Submitted on Summary Judgment In litigating this motion, the parties have submitted a wealth of expert evidence, principally about whether PA 268 would cause longer voting lines and disproportionately impact African-Americans. For example, Plaintiffs rely on two reports authored by Kurt Metzger, a former Regional Information Specialist with the United States Census Bureau in Detroit, Michigan. Dkt. No. 108-2, p. 3 (Pg. ID 2396). Metzger’s first report accompanied the original Complaint and his second was filed with Plaintiffs’ response to the Defendant’s summary judgment motion. See Dkt. Nos. 1-11, 108-2. In both reports, Metzger explains that he has found a high correlation between the percentage of voting age African-Americans in a given community and the percentage of straight-party voters in that community. See Dkt.
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Nos. 1-11, 108-2. Metzger used different data in these two reports. He examined in the first report the nine largest counties in Michigan for which straight-party voting data were available, and utilized results from the November 2012 and November 2014 elections for every precinct in these counties. Dkt. No. 1-11, pp. 6–7 (Pg. ID 224–25). On the other hand, Metzger’s amended report relied on data expanded to all eighty-three Michigan counties for 2016, sixty-nine counties for 2014, and sixtyone counties for 2012. Dkt. No. 108-2, pp. 5–6 (Pg. ID 2398–99).
Second, Plaintiffs lean on an expert report by Theodore Allen, an Associate Professor of Industrial & Systems Engineering at Ohio State University. Dkt. No. 108-4. Allen submits in his report that the elimination of straight-party voting would add to voter wait times—perhaps as much as 25%. Id. at p. 10 (Pg. ID 2497). He also concluded that longer wait times would deter people from voting, and estimated that the number of deterred voters would increase by 3% for each additional sixty minutes of waiting time. Id. at pp. 13–14 (Pg. ID 2500–01).
Lastly, Plaintiffs’ expert Daphne Ntiri is a Professor of African-American Studies at Wayne State University. Dkt. No. 108-5, p. 2 (Pg. ID 2511). Ntiri has over thirty-years of experience researching adult education and adult literacy. Id. at pp. 2–3 (Pg. ID 2511–12). In her report, she observed lower literacy rates in the African-African community as compared to other demographics, because of historical discrimination and the achievement gap. Id. at pp. 14–15 (Pg. ID 2523–
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23). Ntiri posits that there would be greater confusion among African-Americans about the ballot introduced by PA 268. Id. at pp. 17–19 (Pg. ID 2526–28). Specifically, she argues that this confusion would result from the combination of lower literacy rates and a ballot that removes straight-party voting, but keeps party vignettes in their same location. Id.
The Secretary counters with reports from her experts. Laurence Rosen, a professional demographer, observes that straight-party voting rates are high in communities that do not have many African-American residents of voting age. Dkt. No. 102-3, pp. 16, 21 (Pg. ID 1845, 1850). Relatedly, Rosen concludes that there is not a strong correlation between a community’s African-American population and straight-ticket voters. Id. at pp. 17, 36 (Pg. ID 1846, 1865).
Stephen Graves, a Professor of Management at the Massachusetts Institute of Technology, also offers an expert report on behalf of the Secretary. Dkt. No. 1025. He has found that voting lines are longer with straight-party voting than without because voters take time to contemplate which party to support before proceeding with a straight-party ballot. Id. at pp. 4, 16–17 (Pg. ID 1935, 1947–48).
Similarly, Plaintiffs’ expert Paul Herrnson, a Professor of Political Science at the University of Connecticut (and an expert on election systems and voting ballots), has found that voting will be faster without the straight-party option. He has determined that the ballot instituted by PA 268 is less confusing than the straight-
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party ballot, and thus, the new ballot will save voters’ time. Dkt. No. 102-6, pp. 2– 3 (Pg. ID 1983–84). Herrnson also theorizes that, setting aside whether PA 268 will increase voting times, voters will not be deterred by longer lines because voting is driven by sociological factors, and not rational interests. Id. at p. 10 (Pg. ID 1991). Put another way, he believes people will endure lines no matter how long because voting is a social good. Id. III. Legal Standard
Under Federal Rule of Civil Procedure 56(a), “[a] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A court must view the facts, and draw reasonable inferences from the facts, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No genuine dispute of material fact exists where the record “taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The key inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury [fact-finder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
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IV. Discussion Plaintiffs assert three claims. The first two claims arise under the Equal
Protection Clause of the Fourteenth Amendment, restricting the right to vote (Count I) and intentional discrimination (Count II). The third and final claim alleges a violation of Section 2 of the Voting Rights Act (Count III). The Secretary requests that the Court grant the Motion for Summary Judgment on all three counts. The Court will find that the Secretary is not entitled to summary judgment on any of Plaintiffs’ claims.
Before turning to the merits of Plaintiffs’ claims, the Court will first address the Secretary’s argument that the Plaintiffs lack standing.
A. Standing The Secretary argues that the Plaintiffs lack standing for the same reasons discussed in the Response to the Plaintiffs’ Motion for a Preliminary Injunction. See Dkt. No. 15, pp. 9–12 (Pg. ID 441–44); see also Dkt. No. 102, pp. 19–27 (Pg. ID 1776–84). Yet in granting the Plaintiffs’ Motion for a Preliminary Injunction, the Court held that the Plaintiffs have standing. Johnson I, 209 F. Supp. 3d at 943–45. Accordingly, the law of the case doctrine measures that the Secretary’s standing argument must also fail here. Under the law of the case doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the
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same case.” Arizona v. California, 460 U.S. 605, 618 (1983) (citation omitted). “ ‘The doctrine precludes a court from reconsideration of issues decided at an early stage of litigation, either explicitly or by necessary inference from the disposition.’ ” Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1071 (6th Cir. 2014) (quoting Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006)). Three exceptions apply to this doctrine and they arise: “ ‘(1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.’ ” Id. (quoting Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997)).
None of these exceptions apply here. Indeed, the Defendant’s arguments largely reiterate those made in the preliminary injunction briefings.
The Court will clarify that, as for the individual Plaintiffs, its holding in Johnson I was that the African-American plaintiffs have standing; the Court did not address whether Plaintiff Erin Comartin has standing. See Johnson I, 209 F. Supp. 3d. at 944. After reviewing the offered evidence, the Court will hold that Comartin lacks standing because she has not shown injury in-fact. See United States v. Hall, 877 F.3d 676, 681 (6th Cir. 2017) (“Article III standing requires a party invoking federal jurisdiction to demonstrate that it has suffered an injury in fact . . . which is (a) concrete and particularized . . . (b) actual or imminent, not conjectural or
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hypothetical”) (internal quotations and citations omitted). Because she is white, Plaintiffs’ arguments regarding the impact of PA 268 on African-Americans do not apply to Comartin. See Dkt. No. 56, p. 5 (Pg. ID 1096). Instead, she alleges that PA 268 will deprive her of the “benefits of democracy.” Dkt. No. 102-13, p. 8 (Pg. ID 2111). Plaintiffs do not even defend this argument in their summary judgment pleadings. See Dkt. No. 108, pp. 11–13 (Pg. ID 2341–43).
Therefore, as to all the other Plaintiffs, the Court finds that they have standing. B. Restrictions on the Right to Vote under the Equal Protection Clause Plaintiffs raise a facial challenge to PA 268. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 200 (2008) (noting that parties “bear a heavy burden of persuasion” where they “seek[] relief that would invalidate [a] statute in all its applications.”). Plaintiffs argue, and the Court agrees, that reasonable minds may disagree about whether Plaintiffs can prove an equal protection claim based on the impact of PA 268 on African-Americans’ right to vote. Because all election laws burden voters, even if slightly, “courts weigh that hindrance against the provision’s regulatory justification.” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 630 (6th Cir. 2016). This balance recognizes that “ ‘voting is of the most fundamental significance under our constitutional structure.’ ” Id. (quoting Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). But it also acknowledges that “ ‘[c]ommon sense, as well as
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constitutional law, compels the conclusion that government must play an active role in structuring elections.’ ” Id. (alteration in original) (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). Courts must accordingly apply a “flexible standard” when assessing the constitutionality of state election laws. This flexible standard provides that:
A court . . . must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ Id. (quoting Burdick, 504 U.S. at 434). “[T]he ‘rigorousness of [a court’s] inquiry into the propriety of a state election law,’ ” the Sixth Circuit wrote, “ ‘depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.’ ” Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (quoting Burdick, 504 U.S. at 434). For example, “[i]f a state imposes ‘severe restrictions’ on a plaintiff’s constitutional rights (here, the right to vote), its regulations survive only if ‘narrowly drawn to advance a state interest of compelling importance.’ ” Id. (quoting Burdick, 504 U.S. at 434). Conversely, “ ‘minimally burdensome and nondiscriminatory’ regulations are subject to a ‘less-searching examination closer to rational basis’ and ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.’ ” Id. (quoting Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d
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329, 335 (6th Cir. 2016)). For state laws that touch neither end of the spectrum, “i.e., regulations that impose a more-than-minimal but less-than-severe burden,” courts are to “ ‘weigh[] the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’ ” Id. (quoting Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)).
As detailed below, the Court finds that PA 268 imposes more than a minimal, but not severe, burden on African-Americans. See also Johnson I, 209 F. Supp. 3d at 947–48. According to the Secretary, the elimination of straight-ticket voting impacts the manner of voting, but not access to the ballot. Dkt. No. 102, pp. 29–30 (Pg. ID 1786–87). “It is clear, however, that how a state chooses to regulate the manner that a person must cast a ballot undoubtedly impacts the individual right.” Johnson II, 833 F.3d at 663. Indeed, “[a] state election law, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.’ ” Burdick, 504 U.S. at 433 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).
1. Burden on Voting Plaintiffs argue there is a genuine dispute about the constitutionality of PA 268 because it imposes several burdens on voters, namely longer voting lines and
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increased congestion at voting precincts, and greater confusion in completing the ballot. Dkt. No. 56, p. 2 (Pg. ID 1093). And Plaintiffs assert that African-Americans will disproportionately bear this burden. Id. at p. 20 (Pg. ID 1111). The Court will first assess the burden that PA 268 imposes on Michigan voters in general before addressing Plaintiffs’ arguments that PA 268 disproportionately burdens AfricanAmericans specifically.
PA 268 will not cause longer wait times as a matter of law, according to the Secretary. The argument goes that the alleged collateral consequences of removing the option for straight-party voting—persons deterred from voting because of longer wait times and voter confusion leading to rejected ballots—are speculative injuries. Dkt. No. 102, p. 32 (Pg. ID 1789). The Secretary first maintains that the record does not reflect that voting in a state without straight-ticket voting takes longer than voting in a state with straight-ticket voting. Id. at p. 33 (Pg. ID 1790). As the Sixth Circuit noted, this is a false comparison: “Importantly, however, comparing the isolated voting practice of one state with the isolated voting practice of another state is not always an apples-to-apples comparison.” Johnson II, 833 F.3d at 665.
Outside of straight-ticket voting, states have instituted voting practices which reduce voting times and are distinct from practices in Michigan. For instance, noexcuse absentee voting and early voting are available in Ohio, a state that does not have straight-ticket voting. See OHIO REV. CODE § 3509.02(A); see also Ohio
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Democratic Party, 834 F.3d at 625–26. On the other hand, Michigan does not allow no-excuse absentee voting or early voting.3 Indeed, Michigan residents can only
vote absentee (and thereby avoid the polls) if they satisfy one of the following
narrow criteria:
(a) On account of physical disability, cannot without another’s assistance attend the polls on the day of an election.
(b) On account of the tenets of his or her religion, cannot attend the polls on the day of election.
(c) Cannot attend the polls on the day of an election in the precinct in which he or she resides because of being an election precinct inspector in another precinct.
(d) Is 60 years of age or older.
(e) Is absent or expects to be absent from the township or city in which he or she resides during the entire period the polls are open for voting on the day of an election.
(f) Cannot attend the polls on election day because of being confined in jail awaiting arraignment or trial.
MICH. COMP. LAWS § 168.758(1)(a)–(f). These differences show that the
Defendant’s reliance on other states’ elimination of straight-party voting is
misplaced.

3 See Michigan Dep’t of State, Elections & Voting: Early Voting, available at

http://www.michigan.gov/sos/0,4670,7-127-29836-202483--F,00.html

(last

accessed January 18, 2018).

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The Secretary next leans on an expert report from Stephen Graves to show it will take longer to vote with a straight-party ballot than without because voters ponder which party to support before voting. Dkt. No. 102-5, pp. 4, 16–17 (Pg. ID 1935, 1947–48). And she cites Paul Herrnson’s findings to demonstrate that the straight-party voting option is confusing, causing voters to request assistance, and this assistance extends voting times. Dkt. No. 102-6, pp. 18, 41–42 (Pg. ID 1999, 2022–23). Regarding requests for assistance, the Secretary asserts that current wait times are exacerbated by requests from African-Americans with low literacy, as they need greater assistance. Id. at pp. 41–42 (Pg. ID 2022–23).
This evidence, viewed in the light most favorable to the Plaintiffs, does not prove as a matter of law that all of these collateral consequences are unlikely to occur. Voters of course may ponder which party to support when straight-ticket voting, but PA 268 is intended to encourage voters to consider not just party affiliation, but each election contest individually. Contemplating whom to vote for in every partisan contest on a ballot must take longer than deciding whether to vote a straight-ticket for, say, either Republicans or Democrats.
And, Plaintiffs present evidence indicating that PA 268 will increase wait times, including testimony from Christopher Thomas, a former Director of the Bureau of Elections in Michigan who served in that capacity for thirty-six years. See Dkt. No. 102-25, p. 3 (Pg. ID 2316). Thomas testified that he had estimated—in
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conjunction with the elections staff and based in part on discussions with county clerks and other election officials—that PA 268 could cause “up to a 3-minute increase” in voting time for individuals who typically voted a straight-party ticket. Dkt. No. 108-9, at p. 3 (Pg. ID 2550). Similarly, in its analysis of PA 268, the Michigan Senate Fiscal Agency said that the Michigan Department of State acknowledged that the bill “could cause an increase in the time it takes to vote due to voters’ reading the new instructions as well as having to mark their vote for each candidate.” Dkt. No. 1-13, p. 5 (Pg. ID 272).
Plaintiffs also present contrasting evidence in an expert report by Theodore Allen. See Dkt. No. 108-4. Allen “estimate[d] that eliminating the option of straight ticket voting would increase the service time of a voter who had previously used straight ticket voting 25% or more.” Id. at p. 10 (Pg. ID 2497).
Additionally, as Plaintiffs note, common sense dictates that filling in several ovals will take longer than filling in one. A report from the Michigan House Fiscal Agency supports this common sense observation—it noted that the appropriation of $5 million “would be allocated for new voting equipment purchased for local governments that may be needed as a result of longer lines due to longer lines [sic] with the elimination of the straight-ticket option.” Dkt. No. 108-13, p. 2 (Pg. ID 2617).
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Plaintiffs further suggest that the additional time it will take to vote has an important consequence: discouraging people from voting. The Secretary disagrees and instead argues that people will vote no matter the obstacles. Dkt. No. 102, pp. 45–46 (Pg. ID 1803–04). The Secretary contends that because one vote will not ordinarily determine an election, “the costs associated with voting almost always outweigh the benefits.” Id. In other words, the Defendant argues that people vote solely to obtain an intangible benefit, and because this benefit is intangible, voters will visit polls despite it not being in their rational interest (i.e. worth voters’ time, money, etc.). Id. The Secretary continues that “[e]ven if [a] voter took longer to complete the ballot, Michigan does not limit the amount of time any voter has to complete the ballot.” Id. at p. 33 (Pg. ID 1790).
These arguments are unpersuasive. A report by Charles Stewart III, a Political Science Professor at the Massachusetts Institute of Technology, is offered by the Plaintiffs as contrasting evidence. See Dkt. No. 1-3. In this report, Stewart concludes that longer voting lines discourage voting. Id. at p. 18 (Pg. ID 52). Specifically, Stewart observed that 0.8% of respondents to a congressional study did not vote in 2012 primarily because of long lines; and extrapolating this percentage to the number of eligible voters that did not vote in the 2012 federal election, Stewart determined that 730,000 people would have refrained from voting in that election because of long lines. Id.
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Likewise, Allen determined that the number of people discouraged from voting could be gleaned through a 3% percent rule. Dkt. No. 108-4, p. 13 (Pg. ID 2500). He observed that “every additional 60 minutes of waiting time results in a decline in turnout of approximately 3% of the remaining eligible voters (those who are registered and who have not voted absentee).” Id. This theory is based on voter conduct in Ohio and Florida, and not from Michigan. Id. at p. 13–14 (Pg. ID 2500– 01). Allen reasons that this theory would apply to Michigan voters, and so viewing this evidence in the light most favorable to Plaintiffs, this evidence supports Plaintiffs’ claims. Accordingly, a question of fact exists about whether PA 268 would impose a burden of longer wait times on voters.
a) Disproportionate Impact on African-Americans There is also sufficient support in the record for Plaintiffs to survive summary judgment on the issue of whether PA 268 disproportionately affects AfricanAmericans, including through the longer wait times PA 268 may cause. Plaintiffs argue that African-Americans in Michigan both vote a straight-ticket at a higher rate than non-black voters and face longer wait times to vote. Turning first to Plaintiffs’ argument that African-Americans vote a straightticket at higher rates than other demographics, Plaintiffs offer evidence that 49.2% of Michigan voters used straight-party voting in the 2016 general election. Dkt. No. 108-2, p. 9 (Pg. ID 2402). Yet in the 2016 general election, Plaintiffs assert that
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68.9% of people in the seven communities in which African-Americans comprised 40-49.9% of the voting age population used straight-ticket voting. Id. What is more, evidence indicates that 77.7% of individuals in the twelve communities where African-Americans constitute a majority of the voting age population used straightparty voting in the 2016 general election. Id. And in the November of 2012 and 2014 elections, at least 75% of African-American voters, and possibly up to 80%, used straight-ticket voting, according to the Plaintiffs. See Dkt. No. 1-11, pp. 10–13 (Pg. ID 228–31); see also Dkt. No. 56, p. 14 (Pg. ID 1105).
The Defendant counters unconvincingly. First, the Secretary’s argument— that PA 268 impacts all Michigan voters, not just African-American voters—does not address whether PA 268 disproportionately affects African-Americans. The Defendant next contends that Metzger’s 2016 report is unreliable because it does not include several counties with a high percentage of voters who use straight-party voting, including Ottawa County, Washtenaw County, and Livingston County. Dkt. No. 102, p. 42 (Pg. ID 1799); see also Dkt. No. 102-3, p. 21 (Pg. ID 1850). Relying on the expert report of Laurence Rosen, a professional demographer, the Secretary claims that straight-ticket voting is popular in communities where AfricanAmericans comprise a small (or no) percentage of the electorate. Dkt. No. 102-3, pp. 16, 21 (Pg. ID 1845, 1850).
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This of course may be true, given that reports suggest that African-Americans comprise less than 1.0% of the voting age population in 74.5% of Michigan communities. See Dkt. No. 108-2, p. 10 (Pg. ID 2403). But, Plaintiffs’ evidence— that all communities in which African-Americans constitute a high portion of the electorate demonstrate a strong preference for straight-ticket voting—is sufficient to raise a question of fact about whether African-Americans would be disproportionately impacted by PA 268. Dkt. No. 108, p. 20 (Pg. ID 2350); see also Dkt. No. 108-8, p. 5 (Pg. ID 2542). In light of the above analysis, reasonable minds may disagree about whether African-Americans will be disproportionately affected by PA 268, including through facing longer wait times.
Plaintiffs also argue that PA 268 disproportionately burdens AfricanAmericans because it introduces a confusing ballot, which will lead to both more rejected ballots and requests for assistance. Dkt. No. 56, p. 18 (Pg. ID 1109). According to the Plaintiffs, the ballot authorized by PA 268 would be confusing as it removes the straight-party option, but keeps the party vignettes at the top of the ballot. Id. Plaintiffs submit that voters familiar with the party vignettes “will circle the party they want or otherwise mark it, as they will see no other reason for displaying the vignettes on the ballot.” Id. These votes, then, will be rejected and more voters will request help, causing delay. Id. Plaintiffs’ expert Daphne Ntiri found that African-Americans will be disproportionately affected by this confusion
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because African-Americans in Michigan have lower literacy rates than other demographics. See Dkt. No. 108-5, pp. 17–19 (Pg. ID 2526–28).
The Secretary responds that the straight-party ballot is confusing. But even if true, the Court finds it cannot conclude as a matter of law that PA 268 would eliminate confusion about the ballot: The PA 268 ballot includes the same party vignettes as the current ballot, but would not allow straight-ticket voting. Indeed, the Sixth Circuit acknowledged “the new confusion that PA 268 will likely cause.” Johnson II, 833 F.3d at 666.
Consequently, the Plaintiffs’ contention that PA 268 may impose a burden of confusion on African-American voters in Michigan has merit.
2. Regulatory Justification As the Court has assessed the character and magnitude of the alleged burden on voters, the Court will now examine the justifications offered by the Secretary, and whether these justifications warrant the alleged burden as a matter of law. The Secretary explains that PA 268 is intended first to “encourage the electorate to become more educated about the candidates, more fully involved in the democratic process, and more deliberate in their voting choices.” Dkt. No. 102, p. 48 (Pg. ID 1805) (internal quotations and citations omitted). A secondary concern is encouraging voters to complete the non-partisan section of the ballot. Id.
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There is a genuine dispute about whether the first rationale justifies the burden. There is little evidence in the record that straight-party voting is not an informed choice or that straight-party voting demonstrates a lack of involvement in the democratic process. And the record does not contain ample evidence that voters will be more informed or more deliberate in their choices because of PA 268. The PA 268 ballot will still contain party vignettes, and so, Michigan residents can still vote solely based on party affiliation. See Johnson I, 209 F. Supp. 3d at 949; see also Dkt. No. 56, p. 16 (Pg. ID 1107). Therefore, the Sixth Circuit’s observation about this justification applies with equal force here: “[A] voter desiring to vote for all of the candidates of his or her desired political party may still do so without reading any of the candidates’ names, without knowing the office for which the candidate is running, and without knowing a single fact about either—the only change, as the state admits, will be that a voter now “ ‘can’t do it through one bubble.’ ” Johnson II, 833 F.3d at 666 (quoting Dkt. No. 26, pp. 31–32 (Pg. ID 773– 74)).
Second, the Defendant has also not established as a matter of law that the State’s interest in encouraging voters to complete the entire ballot outweighs the risk that PA 268 will cause such long lines that some people will not bother to vote. Indeed, it is not clear that PA 268 will increase ballot completion. Dkt. No. 108-3, p. 24–27 (Pg. ID 2481–84). To the contrary, Plaintiffs contend that voters using the
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straight-party option are more likely to complete a ballot than voters not using the option. Specifically, there is evidence that straight-party voters are more likely to complete the non-partisan section of the ballot because they have less “voter fatigue” than voters who do not vote straight-party. Id. This voter fatigue theory is bolstered by the large number of candidates on Michigan ballots. See Dkt. No. 102, pp. 35– 36 (Pg. ID 1792–93). The Secretary concedes that Michigan voters must vote for a “large number” of offices, explaining that Detroit voters had to fill in thirty-seven bubbles on just the non-partisan section of the 2016 ballot. Id.
Third, the Secretary unconvincingly argues—as in the Response to Plaintiffs’ Motion for a Preliminary Injunction—that because most states do not have straightticket voting, PA 268 modernizes Michigan election law. But whether other states have straight-party voting does not determine the constitutionality of PA 268. See Johnson I, 209 F. Supp. 3d at 948–49 (“If the Ohio Legislature successfully instituted poll-taxes and literacy tests without challenge, it would not change the fact that poll-taxes and literacy tests are still clearly unconstitutional burdens on the right to vote.”).
Even assuming that a comparison of Michigan’s voting practices with other states’ practices is a “potentially valuable tool” here, this comparison does not assist the Secretary. See Ohio Democratic Party, 834 F.3d at 629. The Defendant notes, for example, that Rhode Island eliminated straight-party voting in 2014. See Dkt.
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No. 102, p. 57 (Pg. ID 1814). Rhode Island in 2014 allowed no-excuse voting by mail, however. See 1956 R.I. GEN. LAWS § 17-20-2(4) (providing that a person is eligible to vote by mail if the person “may not be able to vote at his or her polling place in his or her city or town on the day of the election.”). Michigan of course does not permit no-excuse absentee voting and authorizes absentee voting in only limited circumstances. See MICH. COMP. LAWS § 168.758(1)(a)–(f).
Accordingly, whether PA 268 unlawfully restricts African-Americans’ right to vote is an issue for trial.
3. Legal Challenges to Straight-Party Voting Lacking evidence to prove the absence of a factual dispute here, the Secretary cites two cases and maintains that a law removing straight-party voting is always constitutional because no court has struck down a law on the grounds that it eliminated straight-party voting. The Court disagrees and the cases cited in support are inapposite. The Secretary first cites to League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014), but concedes the removal of straight-party voting went unchallenged in this case. She then relies heavily on One Wisc. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 946 (W.D. Wisc. 2016), but this case, too, is distinguishable. In Thomsen, the court held that the elimination of straight-ticket voting in Wisconsin did not offend the Fourteenth Amendment. Id. There, an expert
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witness failed to present evidence in support of his claim that the elimination of straight-ticket voting would cause longer lines, and thus, Wisconsin voters “faced only a slight burden on the right to vote.” Id. at 945–46. Notably, the court concluded that “plaintiffs’ evidence is entirely anecdotal and mainly establishes only that African Americans and Latinos would prefer to use straight-ticket voting.” Id. at 957. Plaintiffs’ evidence here, by contrast, is not “entirely anecdotal”: They have submitted several expert reports and lay testimony indicating that AfricanAmericans vote a straight-party ticket at significantly higher rates than others, and that voting will take longer without a straight-party option. See Dkt. Nos. 108-2, 108-3, 108-9.
In citing Thomsen, the Secretary again incorrectly compares the voting schemes of two states with different practices. See generally Thomsen, 198 F. Supp. 3d 896. For example, when Thomsen was decided, Wisconsin allowed absentee voting “for any reason,” which Michigan does not. See WIS. STAT. ANN. § 6.85; see also Dkt. No. 102-8. Rather, as detailed here above, Michigan narrowly restricts absentee voting. See MICH. COMP. LAWS § 168.758(1)(a)–(f).
Third, Thomsen was decided after a trial, and not at the summary judgment stage. At the summary judgment stage, this Court must view the facts in the light most favorable to the Plaintiffs.
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In light of the foregoing analysis, Plaintiffs’ equal protection claim under the Anderson/Burdick framework will survive the motion for summary judgment.
C. Intentional Discrimination under the Equal Protection Clause Plaintiffs also mount an equal protection challenge alleging that PA 268 was enacted with discriminatory intent. The Court will find that the evidence for this claim is sufficient to proceed to trial. “ ‘Facially neutral laws can be motivated by invidious racial discrimination.’ ” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 636 (6th Cir. 2016) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). To assess whether a facially neutral law was indeed motivated by racial discrimination, “courts must undertake a ‘sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ ” Id. (quoting Arlington Heights, 429 U.S. at 266). This doctrine does not mandate that a plaintiff show racial discrimination was “the law’s ‘dominant’ or ‘primary’ purpose.” Id. (quoting Arlington Heights, 429 U.S. at 266). Rather, “[c]hallengers need to show only that discriminatory purpose was ‘a motivating factor.’ ” Id. (quoting Arlington Heights, 429 U.S. at 266). “[E]vidence of a policy’s disparate impact may be probative in determining whether the policymaker harbored a discriminatory intent.” Spurlock v. Fox, 716 F.3d 383, 400 (6th Cir. 2013) (citing Arlington Heights., 429 U.S. at 266). This
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evidence is, of course, not dispositive. See id. at 401 (“ ‘Disproportionate impact is
not irrelevant, but it is not the sole touchstone of an invidious racial discrimination
forbidden by the Constitution.’ ” (quoting Washington v. Davis, 426 U.S. 229, 242
(1976))). In Arlington Heights, the Supreme Court instructed courts to consider:
‘[t]he historical background of the decision[,] . . . particularly if it reveals a series of official actions taken for invidious purposes’; ‘[t]he specific sequence of events leading up the challenged decision’; ‘[d]epartures from the normal procedural sequence’; ‘[s]ubstantive departures[,] ... particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached’; and the ‘legislative or administrative history[,] . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.’ Id. at 398 (alterations in original) (quoting Arlington Heights, 429 U.S. at 267–68).4
Engaging in this inquiry here, the Court will find that this claim survives the
motion for summary judgment. Addressing the first factor, the historical
background of the decision, as discussed above, the record reveals evidence
signaling that PA 268 will have a discriminatory impact on African-Americans. This
consideration, although not controlling, weighs in favor of the Plaintiffs.
Next the Court must analyze the specific sequence of events leading up to
enacting the law. The Secretary argues that this factor should weigh in her favor
despite conceding that in prior years the elimination of straight-party voting was
4 The third factor—if there were departures, procedurally or substantively, from the ordinary workings of the legislature in enacting this bill—does not offer insight into the dispute.
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“somewhat politically unpopular.” Dkt. No. 102, p. 52 (Pg. ID 1809). Indeed, Michigan voters twice repealed laws removing the practice, once in 1964 and again in 2001. See Dkt. No. 56, pp. 12–13 (Pg. ID 1103–04). A referendum on PA 268 is unavailable to Michigan voters, as it contains an appropriation. See Mich. United Conservation Clubs v. Sec’y of State, 464 Mich. 359, 630 N.W.2d 297 (2001). Moreover, almost a majority of Michigan voters still vote a straight-party ticket— 49.2% in the 2016 general election, according to the Plaintiffs. Dkt. No. 108-2, p. 9 (Pg. ID 2402). This consideration measures against granting the Defendant summary judgment on Plaintiffs’ intentional discrimination claim.
The final factor involves an examination of the legislative and administrative history of PA 268. This consideration is neutral—the parties are engaging in additional discovery as to subpoenas directed at current and former Michigan state legislators. See Dkt. No. 119. The record contains evidence helpful to Plaintiffs, but not enough evidence for the Court to conclude that this factor favors them over the Secretary. Specifically, Plaintiffs present persuasive testimony from the chair of the Michigan Republican Party in 2015, Ronna Romney McDaniel. See Dkt. No. 108-15. McDaniel said that she thought PA 268 was good policy, but conceded that she knew it would benefit Republican Party candidates to the detriment of Democratic Party candidates. Id. at p. 7 (Pg. ID 2632).
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Even if this last factor weighed in the Secretary’s favor, after balancing all of the considerations, the Court will hold that the Defendant is not entitled to summary judgment on Plaintiffs’ intentional discrimination claim.
D. Section 2 of the Voting Rights Act The Court is persuaded that a question of fact exists about whether PA 268 violates Section 2 of the Voting Rights Act. Neutral state action, the Supreme Court held, was not covered under Section 2 of the Voting Rights Act as it was originally enacted. See City of Mobile v. Bolden, 446 U.S. 55 (1980). Congress then amended Section 2 and this amendment established that a showing of intentional discrimination was no longer required to prove a Section 2 claim. Ohio Democratic Party, 834 F.3d at 636 (citing Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002)). Accordingly, “ ‘a violation [of Section 2] could be proved by showing discriminatory effect alone.’ ” Ne. Ohio Coal., 837 F.3d at 626 (alteration in original) (quoting Thornburg v. Gingles, 478 U.S. 30, 35 (1986)). In its current form, Section 2 provides that: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not
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equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301.
This section authorizes claims for either vote dilution or vote denial. Ne. Ohio
Coal., 837 F.3d at 626. Plaintiffs here raise a challenge based on vote denial, and
the standard for denial claims is not well-developed. Id. (explaining that the
Supreme Court has established the test for vote dilution claims, but not for vote
denial claims).
The Sixth Circuit has seemingly approved the following two-part test for vote
denial claims:5
5 The Sixth Circuit in Ne. Ohio Coal. cites this test, but does not confirm its validity. See 837 F.3d at 626–27. The court noted that the decision originally detailing this framework was vacated. See Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014). It was vacated because the injunctive order in that case was stayed by the Supreme Court and the order only applied to the then upcoming election. See Husted v. Ohio State Conference of N.A.A.C.P., ––– U.S. ––––, 135 S. Ct. 42 (2014) (staying preliminary injunction); see also Ohio State Conference of the NAACP v. Husted, No. 14–3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014) (vacating opinion). The Ne. Ohio Coal. court noted, however, that the Sixth Circuit panel in Ohio Democratic Party, 834 F.3d 620, found this test useful (with some clarification) in addressing a Section 2 vote denial claim. See Ne. Ohio Coal., 837 F.3d at 627. Accordingly, this Court will apply the standard described by Ne. Ohio Coal. and Ohio Democratic Party.
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[t]he challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, and (2) that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. See Ne. Ohio Coal., 837 F.3d at 626–27 (internal quotations and citations omitted). “[T]he first element of the Section 2 claim,” the Sixth Circuit emphasized, “requires proof that the challenged standard or practice causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process.” Ohio Democratic Party, 834 F.3d at 637–38. Only if a plaintiff has satisfied this first step, can a district court proceed to the second step. See id. at 638. Step two of this framework “trigger[s] consideration of the ‘totality of circumstances,’ potentially informed by the ‘Senate Factors’ discussed in Gingles.” Id. (referencing Thornburg v. Gingles, 478 U.S. 30, 47–52 (1986)). Under the second step, a court evaluating a facially neutral law must determine whether “a disparate impact in the opportunity to vote is shown to result not only from operation of the law, but from the interaction of the law and social and historical conditions that have produced discrimination.” Id. The Sixth Circuit summarized the two-part test as instructing that “[PA 268] is actionable as a Section 2 violation only if it is shown to causally contribute, as it
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interacts with social and historical conditions that have produced discrimination, to a disparate impact on African Americans’ opportunity to participate in the political process.” Id. at 639 (citing 52 U.S.C. § 10301(a)–(b)).
Applying this standard here, the Court finds that a reasonable person could conclude that PA 268 violates Section 2 of the Voting Rights Act.
1. PA 268 and African-Americans’ Opportunity to Participate in the Political Process Invoking the first step, Plaintiffs argue African-Americans utilize straightparty voting at a higher rate than other demographics and, as PA 268 will increase the time it takes to vote, PA 268 will make it increasingly difficult for AfricanAmericans to participate in the political process through voting. Dkt. No. 108, pp. 50–51 (Pg. ID 2380–81). In his amended report, Metzger concluded that there is a “high correlation between the racial composition of the voting-age population (percent African American) and the use of the straight party voting option,” even after controlling for certain other considerations that may impact the use of straightparty voting. Dkt. No. 108-2, pp. 8–9 (Pg. ID 2401–02). Metzger further posited “that communities where African Americans of voting age were in the majority are significantly more likely to cast a straight party ballot than those where African Americans represent less than 50 percent of the voting-age population.” Id. at p. 10 (Pg. ID 2403). Plaintiffs supplement Metzger’s findings with Allen’s expert report. Dkt. No. 108-4. Allen determined that the longer wait lines caused by PA 268 would
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disproportionately impact African-American voters, depriving thousands of African-Americans of an equal opportunity to participate in the political process. Id. at p. 18 (Pg. ID 2505).
In Ne. Ohio Coal., for example, the Sixth Circuit determined that plaintiffs failed to prove disparate impact at trial, in part, because their expert “found that the evidence to support the conclusion that high-minority counties use absentee ballots more heavily was ‘not very strong.’ ” 837 F.3d at 627. On the other hand, the expert evidence relied on by Plaintiffs uniformly suggests (1) that a strong correlation exists between the percentage of African-Americans of voting age in a community and the percentage of straight-party voters in that community; and (2) that longer voting lines will result from PA 268.
The Secretary responds unconvincingly, reasoning that PA 268 “merely requires that every voter affirmatively vote for each candidate he or she wishes to support, and does not prevent anyone from participation in the political process.” Dkt. No. 102, pp. 57–58 (Pg. ID 1814–15). The issue here, however, is not whether PA 268 bars African-Americans from voting. Of course, if PA 268 precluded all African-Americans from voting, its constitutionality would be an easy question. Rather, the Court must examine whether PA 268 disproportionately affects AfricanAmericans’ ability to participate in the political process. Plaintiffs, as above detailed, have presented a question of fact on that question.
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The Court will accordingly proceed to step two of the Section 2 framework.
2. Gingles Factors and the Totality of the Circumstances
The second part of this framework entails evaluating the totality of the
circumstances and determining if reasonable minds may disagree about “whether the
challenged voting standard or practice causes the discriminatory impact as it
interacts with social and historical conditions.” Ohio Democratic Party, 834 F.3d at
639 (citing 52 U.S.C. § 10301(a)–(b)). The Court finds that the record reveals a
genuine dispute on this issue.
Informing this analysis are the Gingles factors:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
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6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. . . . [8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. [9.] whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. Gingles, 478 U.S. at 36–37. The Court assessed the Gingles factors in Johnson I, and the results are nearly the same after scrutinizing each factor again here. But, given the evidence submitted to the Court since Johnson I, the Court must explain its reasoning. To start, several of these factors—factors one, three and four—are not relevant, as the Court determined in Johnson I.6 See 209 F. Supp. 3d at 951. The Court will address the relevant factors in turn.
6 The Defendant incorrectly argues that because these factors do not weigh in favor of the Plaintiffs, they must weigh in favor of the Defendants. These factors, however, are not either-or propositions. For example, all agree that Michigan does not have a candidate slating process (factor four), and thus, the Court cannot credit the Defendant for the absence of discrimination in a process that does not exist.
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a) Factor Two: The extent to which voting in the elections of the state or political subdivision is racially polarized. Plaintiffs have presented evidence that voting in Michigan is racially polarized. According to a Pew Research Center poll cited by the Plaintiffs, “87% of black voters identify with the Democratic Party or lean Democratic, compared with just 7% who identify as Republican or lean Republican.” PEW RESEARCH CENTER, The Parties on the Eve of the 2016 Election: Two Coalitions, Moving Further Apart, (Sept. 13, 2016), http://www.people-press.org/2016/09/13/2-party-affiliationamong-voters-1992-2016/ [hereinafter TWO COALITIONS, MOVING FURTHER APART]; see also Dkt. No. 108-2, p. 25 (Pg. ID 2418). Conversely, “54% of white registered voters identify as Republican or lean toward the GOP, while just 39% affiliate with the Democratic Party or lean Democratic.” TWO COALITIONS, MOVING FURTHER APART. Even if there is less disparity between these percentages in Michigan specifically, these country-wide figures suggest that there is racially polarized voting in Michigan. b) Factor Five: The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process. The record, and in particular Metzger’s amended report, indicates the impact of discrimination in each of these areas. See Dkt. No. 108-2, pp. 13–24 (Pg. ID 2406–17). In addition, Ntiri found that African-Americans had experienced
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discrimination in education, and one result of this discrimination is lower literacy rates for African-Americans as compared to whites. Dkt. No. 108-5, pp. 2, 14–15 (Pg. ID 2511, 2523–24). Ntiri also concluded that discrimination in education is connected to “substandard schooling, economic and social hardships, and the longstanding racial achievement gap.” Id.
In the face of this evidence, the Secretary attacks Ntiri’s credibility, but does not offer evidence to the contrary. See Dkt. No. 114, p. 6 (Pg. ID 2695). As a result, this factor weighs in Plaintiffs’ favor.
c) Factor Six: Whether political campaigns have been characterized by overt or subtle racial appeals. Plaintiffs’ assertions regarding the occurrence of overt or subtle racial appeals fail, according to the Secretary, because they are based on outdated articles, specifically articles from 2004 and 2012. Dkt. No. 102, p. 62 (Pg. ID 1819); see Dkt. No. 4, pp. 49–50 (Pg. ID 366–67). Instead, the Secretary contends that Plaintiffs are required to show such evidence in the 2016 election. Dkt. No. 102, p. 62 (Pg. ID 1819). The Court finds that this argument lacks merit, and Plaintiffs’ citation of these articles is not problematic because of the dates of these articles. See Dkt. No. 4, pp. 49–50 (Pg. ID 366–67). Moreover, this Court has previously acknowledged racial appeals in 2016 political campaigns. See Johnson I, 209 F. Supp. 3d at 952–53.
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d) Factor Seven: The extent to which members of the minority group have been elected to public office in the jurisdiction. For this consideration, the parties rehash the same arguments offered in the pleadings on the preliminary injunction. Namely, that this factor should weigh in favor of the Defendant first because Michigan has elected African-Americans to various judicial positions, and most notably, to Chief Justice of the Michigan Supreme Court. The weight of this fact is diminished because designations on ballots signaling incumbent candidates for judicial positions make it easier for these candidates to win reelection. See MICH. CONST. art. 6, § 24 (West, Westlaw through Nov. 2016 amendments). The Secretary notes second that former President Barack Obama twice carried Michigan. Plaintiffs, on other the hand, argue that this factor should be resolved in their favor as Michigan has elected only one African-American to a statewide partisan office. Balancing these arguments, the Court again finds that this factor is neutral. See Johnson I, 209 F. Supp. 3d at 953. e) Factor Eight: Whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. As with factor seven, the parties do not present new evidence on this point. Yet the Court acknowledges that recent developments measure in favor of Plaintiffs: The 13th Congressional District, a majority African-American and heavily-leaning
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Democratic district,7 will not have a representative in Congress for nearly one year.
This illustrates a substantial lack of responsiveness on the part of elected officials to
the specific needs of the minority community in this district.
Thus, the Court concludes that, unlike in Johnson I, this factor weighs in
Plaintiffs’ favor. See id. at 953–54 (noting that Plaintiffs’ reference to the Flint water
crisis, standing alone, was insufficient to show this factor weighed in their favor,
because of the state government’s substantial support to Detroit during its
bankruptcy).
f) Factor Nine: Whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
The Court agrees with the Plaintiffs that this consideration should be resolved
in their favor because Michigan is attempting to remove straight-ticket voting after
authorizing its use for over 126 years, and voters twice repealed by referendum the
elimination of straight-party voting. See Dkt. No. 108, p. 57 (Pg. ID 2387).
7 See Michigan Dep’t of State, Office of Governor Rick Snyder: Gov. Rick Snyder announces special election dates for 13th Congressional District, available at http://www.michigan.gov/snyder/0,4668,7-277-80388_80397-454755--,00.html (last accessed January 18, 2018); see also United States Census Bureau, My Congressional District, available at https://www.census.gov/mycd/?st=26&cd=13 (last accessed January 18, 2018); see also Paul Egan, Snyder sets Aug. 7, Nov. 6 election dates to replace John Conyers in Congress, DETROIT FREE PRESS, available at https://www.freep.com/story/news/local/michigan/detroit/2017/12/08/johnconyers-special-election-congress/934206001/ (last accessed January 18, 2018).
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The Gingles factors are just one component of the analysis; the Court must also examine the totality of the circumstances. In doing so, the Court will hold that the evidence warrants a trial about “whether [PA 268] causes the discriminatory impact as it interacts with social and historical conditions.” Ohio Democratic Party, 834 F.3d at 639.
First, evidence in the record indicates that African-Americans will be disparately impacted by the longer voting lines caused by PA 268. This impact is linked to historical discrimination in education, which has led to lower literacy rates among African-Americans as compared to whites. And, these lower literacy rates interact with PA 268 by making it more challenging for African-Americans to complete the ballot. This challenge could lead to confusion that causes longer waiting lines and more spoiled ballots.
Second, historical discrimination in housing is reflected in Michigan through segregated communities, according to evidence submitted by the Plaintiffs. See Dkt. No. 108-2, pp. 10–11 (Pg. ID 2403–04). If African-Americans are largely voting in the same precincts, then they will be disproportionately affected by the longer wait times PA 268 will introduce.
Finally, racial appeals in campaigns—whether direct or subtle—have led to increasing political polarization based on race. Id. at p. 25 (Pg. ID 2418). Plaintiffs, for example, cite to a report which explains that “[i]n urban local elections, race is a
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more decisive factor than income, education, religion, sexual orientation, age,

gender, and political ideology.” Khalilah Brown‐Dean et al., 50 Years of the Voting

Rights Act the State of Race in Politics, JOINT CENTER FOR POLITICAL AND

ECONOMIC

STUDIES,

March

3,

2015,

http://jointcenter.org/sites/default/files/VRA%20report%2C%203.5.15%20%2811

30%20am%29%28updated%29.pdf. Moreover, evidence in the record indicates that

African-Americans overwhelming support the Democratic Party, and this support is

partly motivated by opposition to racial appeals allegedly carried out by the

Republican Party. See generally TWO COALITIONS, MOVING FURTHER APART; see

also Johnson I, 209 F. Supp. 3d at 954.

Because Plaintiffs have presented evidence that PA 268 will causally

contribute, through linkage to social and historical discrimination, to a disparate

impact on African-Americans’ opportunity to vote, the Defendant is not entitled to

summary judgment on Plaintiffs’ Section 2 claim.

V. Conclusion

The Court will DENY the Defendant’s Motion for Summary Judgment [102].

The Court will deny the Defendant’s motion on Plaintiffs’ claims for restricting the

right to vote under the Equal Protection Clause of the Fourteenth Amendment (Count

I), intentional discrimination under the Equal Protection Clause of the Fourteenth

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Amendment (Count II), and violations of Section 2 of the Voting Rights Act (Count

III).

IT IS SO ORDERED.

Dated: January 19, 2018

/s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on January 19, 2018, by electronic and/or ordinary mail. /s/ Tanya Bankston Deputy Clerk

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 Case 2:16-cv-11844-GAD-MKM ECF No. 153 filed 08/09/18 PageID.4605 Page 1 of 104

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN, DION WILLIAMS and COMMON CAUSE,

Case No. 16-cv-11844

Plaintiffs,
v.
RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant. /

AMENDED OPINION AND ORDER GRANTING PLAINTIFFS’ REQUEST FOR PERMANENT INJUNCTIVE RELIEF

Dated: August 9, 2018

/s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge

Case 2:16-cv-11844-GAD-MKM ECF No. 153 filed 08/09/18 PageID.4606 Page 2 of 104
Contents I. Introduction........................................................................................................1
A. History of Straight-Ticket Voting in Michigan.............................................2 B. Procedural History.........................................................................................3 C. Passage of SB 13 ...........................................................................................5
1. SB 13 in the Michigan Legislature and Governor’s Office .......................8 2. Legislative Hearings.................................................................................11 D. Election Laws in Michigan..........................................................................15 II. Findings of Fact ...............................................................................................18 A. Impact of PA 268 on Michigan Voters .......................................................18 B. Effect of PA 268 on African-American Voters...........................................27 1. Lower Levels of Literacy and PA 268 .....................................................31 C. PA 268 and Voter Deterrence .....................................................................34 D. PA 268 and Deterred African-American Voters.........................................36 III. Burden of Proof ..............................................................................................43 IV. Conclusions of Law ........................................................................................44 A. Equal Protection Claim (Count I)................................................................45 1. Burden on African-Americans .................................................................48 2. State Interests Supporting PA 268 ...........................................................61 B. Intentional Discrimination (Count II) .........................................................70 1. Disparate Impact ......................................................................................72 2. Historical Background .............................................................................72 3. Specific Sequence of Events ....................................................................74 4. Substantive Departures.............................................................................76 5. Legislative or Administrative History......................................................77 6. Totality of Circumstances ........................................................................79 C. Section 2 of the VRA (Count III)................................................................81 1. Disparate Impact ......................................................................................85 2. The Senate Factors ...................................................................................87 3. Totality of the Circumstances ..................................................................99 V. Conclusion .....................................................................................................102

Case 2:16-cv-11844-GAD-MKM ECF No. 153 filed 08/09/18 PageID.4607 Page 3 of 104
I. Introduction In early 2016, Michigan passed Senate Bill (“SB”) 13, which eliminated
straight-ticket voting. 2015 Mich. Pub. Acts 268 (“PA 268”). Plaintiffs Michigan State A. Philip Randolph Institute, Common Cause, Mary Lansdown, Dion Williams, and Erin Comartin then sued Ruth Johnson, Michigan Secretary of State (“the Secretary”) in May 2016. See Dkt. No. 1. The Plaintiffs raised both constitutional and statutory claims. See id.
This case proceeded to trial, where the Court heard opening statements and then examined the parties’ briefs, along with the voluminous record.
For the reasons detailed below, the Court will GRANT Plaintiffs’ request for a permanent injunction on PA 268.
The Court cautions that its holdings are specific to this litigation. The Court’s only charge here is to assess the constitutionality and legality of PA 268 based on the election laws and the voting patterns of demographics, in Michigan, as they exist today. The Court appreciates the “vigilant respect” due to the separation of powers embodied in the Constitution. Ohio Democratic Party v. Husted, 834 F.3d 620, 623 (6th Cir. 2016). But “[f]ederal judicial remedies, of course, are necessary where a state law impermissibly infringes the fundamental right to vote.” Id. Such remedies are necessary in this case, as the Court will explain herein.
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A. History of Straight-Ticket Voting in Michigan
By voting a straight-ticket (or straight-party) ballot, Michigan residents can vote for all the candidates of a given political party through shading in one oval, as opposed to voting for each candidate by shading in, say, eighteen ovals. Dkt. No. 146, p. 2 (Pg. ID 4380); see also Dkt. No. 1-15, p. 9 (Pg. ID 288). Michigan residents must also vote for nonpartisan offices and proposals, sometimes as many as thirtyseven nonpartisan offices and eighteen proposals. Dkt. No. 1-15, p. 9 (Pg. ID 288). The straight-party option only streamlines voting for partisan offices; Michigan residents must vote for each nonpartisan office and proposal individually.
Since 1891, Michigan residents have had the option of straight-ticket voting. 1891 Mich. Pub. Acts. 190 § 14. In this 127-year span, Michigan legislators have tried to abolish the practice three times.
Twice, Michigan voters defeated by referendum laws that would have eliminated straight-party voting: first in 1964 and second in 2001. See 1964 Mich. Pub. Acts. 240; 2001 Mich. Pub. Acts. 269. On both occasions, voters demonstrated an overwhelming preference for keeping straight-ticket voting. Michigan voters repealed 1964 PA 240 by a vote of approximately 66% (1,515,875) to 34% (795,546). Dkt. No. 146, p. 2 (Pg. ID 4380). And they repealed 2001 PA 269 by a vote of roughly 60% (1,775,043) to 40% (1,199,236). Id. at p. 3 (Pg. ID 4381).
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The third attempt at eliminating straight-ticket voting occurred in December 2015, when the Michigan Legislature passed SB 13. Id. Governor Rick Snyder signed the bill into law on January 5, 2016 and it became effective immediately. Dkt. No. 102-8, pp. 2 (Pg. ID 2083). SB 13 was enrolled as PA 268. Id.; see also Dkt. No. 146, p. 3 (Pg. ID 4381). PA 268 includes a $5 million appropriation for “purchas[ing] voting equipment to implement the elimination of straight party ticket voting.”1 PA 268, Sec. 795c.(2). This appropriation is for the purchase of voting booths, which can cost just $15. Dkt. No. 147, pp. 34–35 (Pg. ID 4449–50). The appropriation has additional significance: it prevents a referendum on PA 268—and referenda had undone previous laws eradicating straight-party voting. See Mich. United Conservation Clubs v. Sec’y of State, 630 N.W.2d 297, 298 (Mich. 2001).
B. Procedural History
Because of this litigation, PA 268 has yet to cover an election. On May 27, 2016, five months after PA 268 had become law, the Plaintiffs requested a preliminary injunction prohibiting the Secretary from implementing PA 268. Dkt.
1 PA 268 only changed the ballot to remove the straight-party option and so party vignettes were still to appear at the top of ballots. See 2017 Mich. Pub. Acts 113. The Michigan Legislature later removed the party vignettes from the ballot, however. See id.
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No. 4. In requesting the preliminary injunction, the Plaintiffs alleged that PA 268
violates the Equal Protection Clause and Section 2 of the Voting Rights Act (“VRA”).2 And on July 22, 2016, the Court granted Plaintiffs’ request, finding that
PA 268 likely violated the Equal Protection Clause and Section 2 of the VRA. See
Johnson I, 209 F. Supp. 3d 935; see also Dkt. No. 30.
Then, on August 15, 2016, this Court denied the Secretary’s motion to stay
the preliminary injunction pending appeal. See Mich. State A. Philip Randolph Inst.
v. Johnson, Case No. 16-cv-11844, 2016 WL 4267828 (E.D. Mich. Aug. 15, 2016).
Two days later, the Sixth Circuit denied the Secretary’s motion for a stay pending
appeal of this Court’s orders granting the Plaintiffs’ motion for a preliminary
injunction. See Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656 (6th
Cir. 2016) (“Johnson II”).
On October 16, 2017, the Secretary moved for summary judgment. Dkt. No. 102. As the Court denied the Secretary’s motion, this case proceeded to trial.3 See
2 In the initial Complaint, the Plaintiffs also asserted an Americans with Disabilities Act (“ADA”) claim, 42 U.S.C. § 12131 et seq. See Dkt. No. 1, pp. 21–22 (Pg. ID 21–22). After the Court found that they probably lacked standing to assert a claim under the ADA, the Plaintiffs abandoned this claim. See Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935, 945–46 (E.D. Mich. 2016) (“Johnson I”). The Plaintiffs later amended the Complaint by adding an intentional discrimination claim under the Equal Protection Clause (Count II). 3 In deciding that motion, the Court concluded that Plaintiff Erin Comartin lacked standing to assert any of the claims raised herein. Johnson III, 2018 WL 493184, at *4.
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Mich. State A. Philip Randolph Inst. v. Johnson, Case No. 16-cv-11844, 2018 WL 493184, at *1 (E.D. Mich. Jan. 19, 2018) (“Johnson III”).
C. Passage of SB 13
Michigan State Senator Marty Knollenberg, a Republican, introduced SB 13 in January 2015. Dkt. No. 146, p. 5 (Pg. ID 4383). When Knollenberg introduced the bill, he did not have sufficient votes for its passage. Dkt. No. 137-4, pp. 6–7 (Pg. ID 3270–71). In seeking votes, he relied on others, including Ronna Romney McDaniel and Ronald Weiser. Id. McDaniel became chairperson of the Michigan Republican Party in February 2015, one month after Knollenberg introduced the bill. Dkt. No. 146, p. 5 (Pg. ID 4383). Weiser, on the other hand, held no public office or official role in the Republican Party during this period. Id. at p. 6 (Pg. ID 4384). But he was chairperson of the Michigan Republican Party from 2009 to 2011 and holds that position today. Id.
Knollenberg explained his reliance on McDaniel, saying “I needed some help getting some votes and [McDaniel] knows people, so you know, she, I assume, went out and talked to folks. I don’t know who, but I needed more votes. . . . And so, she was helping me get votes.” Dkt. No. 137-4, p. 6 (Pg. ID 3270). McDaniel helped
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Knollenberg obtain votes by, for example, connecting Knollenberg with Weiser. See id. at pp. 19–20 (Pg. ID 3283–84).
And Knollenberg kept McDaniel informed as to his communications with Weiser, as indicated by a March 2015 text message which Knollenberg sent to McDaniel. Id. According to Knollenberg, Weiser had confirmed that he was working to secure the Governor’s support for SB 13, and that the Chair of the Michigan Senate Elections Committee, David Robertson, would support SB 13 if the Governor confirmed that he would sign the bill. Id. at p. 19 (Pg. ID 3283).
Knollenberg continued to coordinate with Weiser in the following months. In May 2015, Weiser emailed Knollenberg asking for “a whip count,” or in layman’s terms, the number of Michigan Senators who would support SB 13. Id. at p. 21 (Pg. ID 3285). Knollenberg replied “I will work on it ASAP.” Id.
Beyond connecting Knollenberg with political operatives, McDaniel worked to pass SB 13 by seeking Republican lawmakers’ support for the bill. For instance, she urged Robertson and Lisa Posthumus Lyons, then-Chair of the House Elections Committee, to support SB 13. Id. at p. 20 (Pg. ID 3284). McDaniel also told Knollenberg that she would speak with the Governor to secure his approval. Id. at pp. 19–20 (Pg. ID 3283–84).
McDaniel vigorously supported SB 13 for two reasons: (1) she thought it would help the Republican Party win elections; and (2) she believed it was good
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policy. In her words: “I was party chair of Michigan, I wanted to win elections. I’m not going to say that I didn’t think that this would help Republicans win elections, but I also think at the same time it’s very good policy.” Dkt. No. 108-15, p. 7 (Pg. ID 2632). McDaniel found SB 13 beneficial for the Republican Party, as “if one party is using [straight-party voting] more than the other and they’re just voting straight party, then it’s hard for that candidate to break out.” Id. at p. 5 (Pg. ID 2630). Specifically, she felt that the abolition of straight-ticket voting would help “downthe-ticket” Republican candidates, e.g. candidates for school board elections. Id. at 4–6 (Pg. ID 2629–31). It would allow these candidates to “break out” by encouraging them to spend money and resources campaigning instead of depending on top-of-the-ticket candidates for their election, according to McDaniel. Id.
She claimed her father was a “perfect example” of a Republican down-theticket candidate who would have benefited from SB 13. Id. at p. 6 (Pg. ID 2631). McDaniel said her father was “the top Republican vote getter” in 2008 for a seat on the Michigan State University Board of Trustees. Id. But, McDaniel lamented, “he lost statewide because every Republican lost statewide because Obama was a juggernaut.” Id. That is, McDaniel believed that many people voted a straight-ticket for the Democratic Party because of former President Barack Obama and “[that] impacted the ballot all the way down.” Id. From her perspective, SB 13 would prevent strong straight-ticket support of a Democratic Party presidential candidate
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from ruining down-the-ticket Republican candidates’ chances for election. And in that way, McDaniel considered that the law would assist the Republican Party at the expense of the Democratic Party.
Additionally, McDaniel considered SB 13 good policy. She said it would aid the public by encouraging voters to assess each candidate individually. Id. As summarized by the Michigan Senate Fiscal Agency, McDaniel’s theory supposes that, “[w]ithout the option of straight-ticket voting, people might be encouraged to educate themselves about the prospective office-holders, their qualifications, and what they stand for.” Dkt. No. 102-7, pp. 3–4 (Pg. ID 2079–80).
McDaniel understood SB 13 as good policy despite her knowledge of concerns that it would increase wait times at voting precincts. Dkt. No. 108-15, p. 5 (Pg. ID 2630). In response to these concerns, “[she] assume[d] the legislature addressed those issues.” Id. Regardless, she said, “[any increase in wait times] was not, from a [Republican] [P]arty perspective, something in our jurisdiction.” Id.
1. SB 13 in the Michigan Legislature and Governor’s Office
The Michigan Legislature resumed the official legislative process for SB 13 on November 10, 2015. Dkt. No. 146, p. 7 (Pg. ID 4385). Immediately, elections
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officials conveyed an unequivocal fear that PA 268 would make wait times not only much longer, but also unmanageable.
On November 10, 2015, the Gaines Township Clerk, Crystal Osterink, emailed Lyons regarding SB 13.4 Dkt. No. 137-3, pp. 29–30 (Pg. ID 3253–54). Osterink expressed a “grave concern” about the longer lines and wait times that SB 13 would cause. Id. at p. 29 (Pg. ID 3253). She complained that lines were already too long, predicting that even if straight-party voting were available in the thenforthcoming 2016 general election, wait times would be at least thirty minutes. Id. According to Osterink, “it would take a voter much, much longer to vote a ballot where each individual candidate (even within their party choice) had to be selected[.]” Id. She declared “I cannot imagine the lines, the complaints, the media attention (remember Grand Rapids several years ago) if people would have to wait in a longer line than they have been.” Id.
Likewise, the Kent County Clerk, Mary Hollinrake, emailed Lyons on November 12, 2015 claiming that “[Michigan Senators] have NO idea what impact
4 In Michigan, county clerks provide high-level supervision over election processes. Dkt. No. 1-15, p. 2 (Pg. ID 281). Their responsibilities include (1) training election inspectors, who are hired by cities and townships; (2) printing ballots; (3) developing and maintaining voting records and canvassing the election; (4) programming voter equipment; and (5) advising city and township clerks. Id. City and township clerks, on the other hand, handle the election processes specific to a given city or township, including administering precincts and managing the financial aspects of election administration. Id.
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[SB 13] will have on election night.” Id. at p. 31 (Pg. ID 3255). Because of the high number of proposed ballot measures, Hollinrake explained, voters would have to complete two ballots (each 18-22” long and 8-9¾” wide, allowing for three columns of positions and ballot proposals on both sides). Id.; see also Dkt. No. 56, p. 10 (Pg. ID 1101). The incredibly long ballots, combined with the elimination of straightticket voting, would result in “disaster” in certain areas, she proclaimed. Dkt. No. 137-3, p. 31 (Pg. ID 3255).
Lyons shared Hollinrake’s concern, as demonstrated by a text message she sent to Bill Zaagman on November 20, 2015. See id. at p. 36 (Pg. ID 3260). Zaagman was a spokesperson and lobbyist for the Michigan Association of County Clerks and the Michigan Association of Municipal Clerks. Id. In that November 2015 text, Lyons wrote “are you making sure all your clerks are telling house members that straight ticket elimination is a nightmare without secure [sic] no reason absentee voting?” Id.
Zaagman himself was troubled by the anticipated impact of SB 13 on Michigan voters. In a draft distribution dated November 19, 2015, he encouraged clerks to pressure their state representatives to reject the bill, saying that “SB 13 will cripple [clerks’] precincts[.]” Dkt. No. 102-22, p. 2 (Pg. ID 2255). In addition, in proceedings in the House, both the Michigan Association of Municipal Clerks and
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Michigan Association of County Clerks testified in opposition to SB 13. Dkt. No. 108-13, p. 6 (Pg. ID 2621).
In contrast, only two clerks have backed the elimination of straight-party voting. See id.; Dkt. No. 141-14. The Elections Clerk of Calhoun County, Michigan, Anne Norlander, is the only clerk to have submitted an affidavit in this case supporting PA 268. Dkt. No. 141-14. She agrees with McDaniel that PA 268 will encourage voters to be “more informed” about candidates. Id. at p. 4 (Pg. ID 3983). She also asserts that the elimination of straight-party voting will motivate voters to prioritize candidates rather than political parties. Id. The only other clerk to have supported PA 268 is the clerk of Clinton Township in Macomb County. Dkt. No. 108-13, p. 6 (Pg. ID 2621). That clerk submitted a letter advocating for PA 268 during the House hearings. Id.
2. Legislative Hearings
On November 10, 2015, a Senate committee held an hour-long hearing on SB 13 and voted it out of the committee. Dkt. No. 146, p. 7 (Pg. ID 4385); see also Dkt. No. 108-12, p. 13 (Pg. ID 2613). The full Senate held a hearing on the bill that same day. Dkt. No. 146, p. 7 (Pg. ID 4385); see also Dkt. No. 108-12, p. 13 (Pg. ID 2613). In that hearing, several Senators criticized the appropriation for additional
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equipment, which at that time was set at $1 million. See Dkt. No. 108-12, p. 14 (Pg. ID 2614). Senator Curtis Hertel Jr. said “[t]his appropriation is a $1 million insurance policy against the will of the people. The only reason to add the appropriation to this bill is to go around the voters and make it referendum-proof.” Id. Then-Senator Steve Bieda likewise stated that “I find it really appalling that we have a provision in there for an appropriation to make it referendum-proof. We know why that is being done. You know why that is being done.” Id. “[T]he only reason to [enact SB 13] is a perceived partisan advantage,” former Senator Bieda said. Id.
Despite these statements, the full Senate passed SB 13 on November 10, 2015, and next sent it to the House. See id. at p. 13 (Pg. ID 2613); Dkt. No. 146, p. 7 (Pg. ID 4385). The House Elections Committee evaluated the bill over two days, December 3rd and 8th of 2015. Dkt. No. 146, p. 10 (Pg. ID 4388). The first day included testimony from Senator Knollenberg, the bill’s sponsor. Knollenberg explained his motivation for the bill, testifying that:
[t]o those in countries who don’t have the right to vote, I assume how long it takes to vote isn’t on their list of concerns. . . . It is time that Michigan’s elections process becomes more about people, less about political parties, and even less about how long it takes to exercise one of our most fundamental rights. Elections Hearings, MICHIGAN HOUSE OF REPRESENTATIVES VIDEO ARCHIVE 20:39– 20:46, 20:55–21:05, (December 3, 2015), available at http://house.mi.gov/MHRPublic/videoarchive.aspx.
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Knollenberg responded to clerks’ anxiety about increased wait times and longer lines, first by testifying that the appropriation for voting equipment was intended to address those worries. Id. at 20:21 to 20:24. Second, he again dismissed concerns that PA 268 would generate impossibly long lines. He said “to those individuals [in third world countries] that can’t vote, they just want to be able to vote, regardless of how long it takes to vote. In those countries where they’ve been able to vote for the first time, they’ll wait all day.” Id. at 21:49 to 22:11.
On the second day of testimony, the House Elections Committee voted SB 13 out to the full House. Dkt. No. 146, p. 10 (Pg. ID 4388); see also Dkt. No. 108-13, p. 2 (Pg. ID 2617). The full House passed the bill on the following day, December 9, 2015, and did so largely along party lines. Dkt. No. 146, p. 12 (Pg. ID 4390). All the House Democrats opposed SB 13, as did four Republicans. Id.
Notably, in passing SB 13, the House tied it to a bill authorizing no-reason absentee voting, House Bill (“HB”) 4724. Id. The House imposed the tie-bar to alleviate congestion on Election Day. Id.; see also Dkt. No. 108-13, p. 5 (Pg. ID 2620). Lyons testified that many legislators in the House, including herself, had backed HB 4724 because it would have lessened the impact of longer lines and wait times caused by SB 13. Dkt. No. 137-3, p. 36 (Pg. ID 3260).
McDaniel opposed no-reason absentee voting because the Republican Party was not prepared “to train and put people in the clerk’s offices for the extended time
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period” for the purpose of “ensur[ing] the Integrity [sic] of the election.” Dkt. No. 140-2, p. 2 (Pg. ID 3414). Ensuring the integrity of the election, McDaniel explained, included poll challenges. Id.
On December 16, 2015, the Senate received SB 13, now tied to HB 4724. Dkt. No. 146, p. 14 (Pg. ID 4392). The Senate severed the tie-bar, passed SB 13 standing alone, and sent it to the House for approval. Id. The House passed SB 13 on December 16, 2015, this time without HB 4724.
The Governor signed SB 13 on January 5, 2016. See Dkt. No. 102-8. In signing the bill, he observed that, “[u]nder SB 13, Michigan joins 40 other states that require voters to select an individual for each elective office, rather than simply selecting a political party.” Id. at p. 2 (Pg. ID 2083). And he implored the Senate to pass HB 4724. Id. Citing evidence from the National Conference of State Legislatures, the Governor wrote that “Michigan is one of only 13 states that does not allow for some form of early or no-reason absentee voting.” Id. He stressed that “[u]pdating Michigan’s archaic absentee voting law, and bringing Michigan in line with other states regarding early, or easier, access to the polls is critical[.]” Id.
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D. Election Laws in Michigan
As suggested by Governor Snyder, Michigan has a unique voting regime. To begin, Michigan ballots include races for many positions beyond those for the federal or state legislature, including judicial seats and trustee positions on the boards of public universities. See MICH. CONST. art. VI; id. art. VIII, § 5. Indeed, in the 2012 general election, Detroit voters assessed a total of seventy-nine offices and proposals on the ballot: eighteen partisan offices, forty-three nonpartisan offices, and eighteen proposals. Dkt. No. 1-15, p. 9 (Pg. ID 288). The November 2016 general election ballot was not quite as long. There, Detroit residents voted for at least fifty-five positions. See id.; see also Dkt. No. 102-17, p. 13 (Pg. ID 2172). That year’s ballot included eighteen or nineteen partisan offices, thirty-seven judicial offices, and seven school board seats for selection out of sixty-two candidates. See Dkt. No. 1-15, p. 9 (Pg. ID 288); see also Dkt. No. 102-17, p. 13 (Pg. ID 2172); see also Dkt. No. 146, p. 16 (Pg. ID 4394).
And except for a limited number of qualified residents, all Michigan voters must visit the polls on Election Day. Michigan does not permit early voting or noreason absentee voting. See MICH. COMP. LAWS § 168.758. A person can only vote absentee in Michigan if they meet one of the following narrow criteria:
(a) On account of physical disability, cannot without another’s assistance attend the polls on the day of an election.
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(b) On account of the tenets of his or her religion, cannot attend the polls on the day of election. (c) Cannot attend the polls on the day of an election in the precinct in which he or she resides because of being an election precinct inspector in another precinct. (d) Is 60 years of age or older. (e) Is absent or expects to be absent from the township or city in which he or she resides during the entire period the polls are open for voting on the day of an election. (f) Cannot attend the polls on election day because of being confined in jail awaiting arraignment or trial.
Id.
Between its prohibition on early voting and restriction on absentee voting,
Michigan has one of the most restrictive voting regimes in the country. Indeed,
thirty-seven states allow early voting. Absentee and Early Voting, NAT’L
CONFERENCE OF STATE LEGISLATURES (Aug. 17, 2017),
http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-
voting.aspx. Thus, only thirteen states do not allow voters to cast a ballot in-person
prior to Election Day. And twenty-seven states permit no-reason absentee voting,
whereas twenty states (including Michigan) require a justification. Id.
Additionally, fourteen states recently eliminated straight-ticket voting.5 Yet
eleven of these fourteen states permit early voting. Id. Of these fourteen states, only
Michigan, New Hampshire, and Missouri do not allow early voting. Id.
5 These states are Georgia, Illinois, Indiana, Iowa, Michigan, Missouri, New Hampshire, New Mexico, North Carolina, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin. Straight-ticket Voting States, NAT’L CONFERENCE OF
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Likewise, nine of these fourteen states have authorized no-reason absentee voting; only Michigan, Missouri, New Hampshire, Texas, and West Virginia do not allow no-reason absentee voting. In sum, of the fourteen states that have recently eliminated straight-ticket voting, Michigan is one of only three states—along with Missouri and New Hampshire—to not have authorized both early voting and noreason absentee voting. Michigan, on the other hand, is one of nine states to allow straight-ticket voting. Id.
Although most Michigan voters must attend the polls on Election Day, Michigan law includes measures intended to alleviate congestion at the polls. For example, voting precincts can include no more than 2,999 voters. See MICH. COMP. LAWS § 168.661. Any precinct with more than 1,000 voters must have at least one voting machine for every 600 active registered voters, and polls are open from 7:00 a.m. to 8:00 p.m. See id.; see also Dkt. No. 147, p. 42 (Pg. ID 4457).
These administrative measures have not stemmed long lines and wait times in Michigan, however. A 2012 national study concluded that Michigan voters had the sixth longest average wait time, which was almost twenty minutes. Dkt. No. 146, p. 18 (Pg. ID 4396); see also Dkt. No. 1-3, p. 44 (Pg. ID 78). A former chair of the House Elections Committee offered anecdotal support for that study, testifying that
STATE LEGISLATURES (May 31, 2017), http://www.ncsl.org/research/elections-andcampaigns/straight-ticket-voting.aspx#2.
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“sometimes you would hear of long line issues, even with straight-party voting.” Dkt. No. 137-3, p. 14 (Pg. ID 3238).
Because of its narrow exception for qualified absentee voters, its decision not to authorize early voting, and its extremely long ballots, Michigan has a restrictive voting scheme.
II. Findings of Fact
A. Impact of PA 268 on Michigan Voters
In the context of Michigan’s particular election laws, the Court finds that PA 268 will increase wait times for all Michigan voters. It is self-evident that shading in eighteen ovals will take much longer than shading in one oval. But through election officials’ testimony and affidavits, and expert reports, Plaintiffs have proven that PA 268 will introduce significantly greater wait times and dramatically longer lines.
Indeed, as detailed above, almost every elections clerk who has commented on PA 268 has concluded that the law will have these effects. And other elections officials share elections clerks’ concerns. For instance, Christopher Thomas held those views, and he was the Director of the Michigan Bureau of Elections for thirty-
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six years. Thomas, in conjunction with Bureau of Elections staff, estimated that it takes three minutes longer to shade in an oval for each individual partisan candidate than to shade in one oval. Dkt. No. 141-19, p. 2 (Pg. ID 4049). An additional three minutes for each straight-ticket voter would drastically increase voting times: 1.5 to 2.5 million Michigan residents voted a straight-ticket in the 2016 general election. Dkt. No. 108-13, p. 7 (Pg. ID 2622).
Like Thomas, Joseph Rozell, the Director of Elections in Oakland County, noted that voting with a straight-ticket is “easier and faster” than voting for each candidate individually. Dkt. No. 1-15, pp. 2–3 (Pg. ID 281–82). Daniel Baxter, the Director of Elections in Detroit, and Chris Swope, the Lansing City Clerk, agreed with Rozell’s assessment. Id. at p. 8, 16 (Pg. ID 287, 295). The lay evidence here, then, strongly indicates that PA 268 will generate significantly longer lines and wait times.
In addition, particularly convincing are the conclusions and testimony offered by Plaintiffs’ expert Theodore Allen, an associate professor of Industrial Engineering at Ohio State University. Dkt. No. 108-4, p. 3 (Pg. ID 2490). Allen analyzed voting patterns during the 2016 presidential election at thirty-one precincts in Michigan, precincts which Plaintiffs’ demography expert, Kurt Metzger,
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identified as representative of Michigan as a whole.6 Id.; Dkt. No. 141-8, p. 36 (Pg. ID 3712). Allen examined data compiled by volunteers who observed the polls at these thirty-one precincts. Dkt. No. 141-8, pp. 34–38 (Pg. ID 3710–14). Of the thirty-one precincts, African-Americans outnumbered other demographics in only five precincts, but were not a majority in any of these precincts. Dkt. No. 108-4, pp. 6, 8 (Pg. ID 2493, 2495). These five precincts were in either Detroit, Flint, or Saginaw. Id.
Allen simulated the amount of time it would take for people to vote with or without a straight-party option. Id. at p. 8 (Pg. ID 2495). To create this simulation, he altered the data in two important ways. Id. at p. 11 (Pg. ID 2498). First, in seven precincts he added voting booths to account for additional resources, like desks, which enabled voting but were not voting booths. Id. at p. 6 (Pg. ID 2493); see also Dkt. No. 141-8, pp. 41–42 (Pg. ID 3717–18). Second, he subtracted the number of voting booths observed at certain polling places to identify only those booths used in a particular precinct. Dkt. No. 108-4, p. 6 (Pg. ID 2493); see also Dkt. No. 1418, pp. 41–42 (Pg. ID 3717–18). Allen made this adjustment because some polling places encompassed several precincts, and the data reflected the number of voting
6 These precincts, according to Metzger, were representative of those throughout Michigan during the 2016 election with respect to the amount of time voters spent at the polls, including time spent waiting, registering, and voting. Dkt. No. 108-4, p. 6 (Pg. ID 2493).
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booths at only the location level. No. 108-4, p. 6 (Pg. ID 2493); see also Dkt. No. 141-8, pp. 41–42 (Pg. ID 3717–18).
Finally, according to Allen, there are three components to voting: registration, voting booths, and tabulators, where voters scan ballots. Dkt. No. 108-4, p. 9 (Pg. ID 2496). And one of the three stages of voting often serves as the principal cause of wait times, or “bottleneck.” Id. He contends that the voting booth is most frequently the bottleneck. Id. Consequently, Allen omitted the other voting stages from the simulation and stated that this change did not affect the results. Id.
Based on this data, Allen reached several important conclusions. He 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. Id. at p. 10 (Pg. ID 2497). As an example of the time saved with straight-party voting, he noted that Flint residents waited an average of fifty-two minutes to vote and had a ballot comprised of fifteen partisan races, twelve nonpartisan races, and nine proposals. Id. Allen then determined that PA 268 might increase wait times by more than 33%, as illustrated by this Flint example. Id.
Because Allen was able to both evaluate a representative sample of Michigan voting precincts and create a simulation based on that representative sample, the Court finds that his conclusions are persuasive. Indeed, Allen’s findings likely reflect the impact of PA 268, given the high number of partisan elections on
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Michigan ballots, which Michigan voters would have to shade in individually with the implementation of PA 268.
The Secretary contends that PA 268 will not increase waiting times and, in making this argument, she largely relies upon expert reports authored by Stephen Graves and Paul Herrnson. The Court will give these expert reports some weight, but will ultimately conclude that the balance of the evidence weighs in favor of the Plaintiffs. First, the Secretary’s expert Stephen Graves is a Professor of Management at the Massachusetts Institute of Technology and he specializes in the disciplines of operations management, supply chain management, and manufacturing systems. Dkt. No. 102-5, p. 2 (Pg. ID 1933). Graves’s analysis is credible, although not particularly persuasive.
Graves agrees with Allen that there are three processes relevant to voting. Id. at p. 6 (Pg. ID 1937). Unlike Allen, Graves determined that waiting times in Michigan were almost solely caused by bottlenecks at registration. Id. at p. 5 (Pg. ID 1936). In other words, he believes that Allen’s data shows that voting booths were generally available when voters were ready to use them. Therefore, in Graves’s estimation, any increase in time spent in voting booths because of PA 268 would not increase voting wait times overall.
Graves also attacked Allen’s methods. He supposed that Allen arbitrarily reduced the number of voting booths at the three most congested precincts (Saginaw,
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Flint, and one in Detroit), which were precincts where African-American voters outnumbered other demographics. Id. at pp. 15–16 (Pg. ID 1946–47); see also Dkt. No. 108-4, pp. 6–7 (Pg. ID 2493–94).
Graves’s first finding warrants some weight, as Allen concedes that bottlenecks occur at voting registration, not just at voting booths. Yet it is unlikely that backups at registration are the sole cause of all the delay at voting precincts throughout Michigan—delay which amounts to the sixth longest wait time in the country. See Dkt. No. 1-3, p. 44 (Pg. ID 78).
Even assuming that Graves is correct that voters only wait at registration, this will change under PA 268. Allen concludes that the eradication of straight-ticket voting will cause straight-ticket voters—1.5 to 2.5 million Michigan residents—to use 25% more time in voting booths. PA 268, then, will significantly impact the amount of time it takes for a large number of residents to vote. Accordingly, voting booths will not be as readily available with PA 268 as Graves contends that they are today.
Finally, Graves convincingly undermines Allen’s data by highlighting that Allen may have eliminated booths in certain precincts in an imprecise manner. The Court finds Graves’s contention persuasive given that the volunteers Allen relied on misunderstood whether a location consisted of multiple precincts or just one precinct. This misunderstanding forced Allen to reconstruct precincts from the
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available data. Allen may have successfully reconstructed these precincts, of course. The Court concludes, however, that this adjustment reduces the likelihood that Allen has evaluated precisely accurate data. Consequently, Graves’s report and testimony undercut some of the Plaintiffs’ evidence.
In contrast, the findings and methods of Paul Herrnson, a professor of Political Science at the University of Connecticut, are unsound and lack credibility. Dkt. No. 102-6, p. 3 (Pg. ID 1984). Herrnson determined that the elimination of straight-party voting will not increase voter wait times because “the straight-party option has been shown to lead to greater confusion, increased voter errors, and more individuals feeling the need for assistance during the voting process.” Id. He attests that these issues are particularly pronounced for African-American voters “with low literacy levels and other characteristics associated with traditionally underrepresented groups.” Id.
Herrnson concedes that shading in one oval takes less time than shading in eighteen ovals, but he argues that voting consists of more than simply shading in ovals. Id. at p. 12–13 (Pg. ID 1993–94). According to Herrnson, straight-ticket voting in Michigan is confusing because ballots do not include instructions about how to override a straight-ticket vote. Id. at p. 14 (Pg. ID 1995). He determined that a study of voters from Maryland, Michigan, and New York revealed that voters reported higher satisfaction with a ballot where they voted for each candidate
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individually, as contrasted with a ballot having the straight-party option. Id. at p. 28–29 (Pg. ID 2009–2010). Herrnson claims that these participants, when completing a straight-ticket ballot, asked for help more frequently than when they were completing a ballot which allowed them to vote for each candidate individually. Id. at p. 29 (Pg. ID 2010). And, according to Herrnson, this confusion leads to more voters asking for assistance than would be the case without straightticket voting. Id. at p. 18 (Pg. ID 1999).
Herrnson’s determinations include several analytical gaps which the Court is unwilling to overlook. The first, and most alarming, is that straight-ticket voting is confusing to so many Michigan voters that its elimination will expedite the voting process. For 127 years, Michigan ballots have included a straight-party option. And in the 2016 election, almost half (49.2%) of Michigan voters used the straight-party option. Dkt. No. 108-2, p. 9 (Pg. ID 2402). Thus, the Court strains to comprehend how the mechanics of straight-party voting might confuse Michigan voters generally.
What is more, Herrnson reached this conclusion in reliance on a study of voters from Maryland, New York, and Michigan. Maryland and New York do not have straight-party voting. Herrnson, then, bases his findings on a study which includes voters who probably have no prior experience with a straight-party ballot.
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Third, Herrnson’s analysis requires that the Court agree that straight-party voting not only confuses Michigan voters, but also that this confusion compels so many voters to ask for assistance as to negate the three minute increase in voting time that PA 268 would introduce for 1.5 to 2.5 million voters. This is inconceivable. The Court doubts that PA 268 is confusing to Michigan voters generally, and there is no evidence regarding how many Michigan voters request assistance or how much time this assistance ordinarily entails. The Court, therefore, will not place any weight on Herrnson’s examination of the impact of PA 268 on voter wait times.
Additionally, the Court recognizes that PA 268 includes an appropriation for voting equipment. But aside from asserting that voting booths are inexpensive, the Secretary offers no evidence regarding how this appropriation will specifically reduce wait times. Evidence, for example, describing how many voting booths or other equipment might be purchased and used in certain areas. In any event, that evidence would not have saved the Secretary’s argument. The Plaintiffs rightly contend that voting precincts can accommodate only so many additional booths. See Dkt. No. 1-15, p. 6 (Pg. ID 285). Consequently, additional voting booths, standing alone, will not quell the congestion that PA 268 would create in voting precincts.
The parties vigorously debate whether PA 268 causes longer lines and wait times. Given the overwhelming number of elections officials who determined that PA 268 will cause drastically longer wait times and the relative strength of Plaintiffs’
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expert evidence, the Court finds that the Plaintiffs have shown that PA 268 will cause significantly longer lines and wait times.
B. Effect of PA 268 on African-American Voters
The Court further concludes that African-Americans will disproportionally suffer increased wait times. African-Americans vote a straight-party at vastly higher rates than whites. The Plaintiffs demonstrate this fact through research by Kurt Metzger, Regional Information Specialist with the United States Census Bureau for thirty-seven years. Dkt. No. 108-2, at p. 3 (Pg. ID 2396). Metzger studied 2012 to 2016 election data from Michigan. Id. at p. 2 (Pg. ID 2395). For 2016, he studied all eighty-three Michigan counties; for 2014, sixty-nine counties; and for 2012, sixty-one counties.7 Id. at pp. 6–7 (Pg. ID 2399–2400). To identify the racial composition of a given area, he relied on 2010 census data. Id. at p. 6 (Pg. ID 2399). Because precinct boundaries changed frequently between 2010 and 2016, Metzger analyzed the prevalence of straight-ticket voting among communities, which is a larger collection of voters than precincts. Id. at p. 7 (Pg. ID 2400). Based on his
7 For 2012 and 2014, Metzger captured approximately 90% of Michigan’s voting age population and about 96% of the African-American voting age population in Michigan. Id. at p. 6 (Pg. ID 2399).
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analysis, there were 1,522 communities in Michigan in 2016. Id. at p. 10 (Pg. ID 2403).
After aggregating and examining this data, Metzger found that “it is quite clear that African Americans are more likely to use the straight party voting option and will be disproportionately affected by its elimination.” Id. at p. 2 (Pg. ID 2395). He observed that 49.2% of all Michigan voters used the straight-party option in the 2016 general election. Id. at pp. 9–10 (Pg. ID 2402–03). But in communities where African-Americans constituted less than 40% of the voting age population, only 46.5% of voters used the straight-ticket option. Id. at p. 9 (Pg. ID 2402).
Yet straight-ticket voting rates were much higher in communities where African-Americans constituted a substantial percentage of the voting age population. For example, in the twelve communities where African-Americans were the majority demographic, 77.7% of voters used the straight-party option. Id. 68.9% of voters used the straight-ticket option in the seven communities where AfricanAmericans were 40 to 49.9% of the voting age population. Id. This evidence shows that if a Michigan community has a high percentage of voting age AfricanAmericans, that community’s voters use the straight-ticket option at a high rate.
In addition, the evidence shows that African-Americans are using straightticket voting in high rates for the Democratic Party. In communities where AfricanAmericans constituted at least 40% of the voting age population, 94.8% of straight-
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ticket votes were submitted for the Democratic Party. Id. at p. 25 (Pg. ID 2418). The Republican Party, however, garnered 53.3% of straight-ticket votes in communities where African-Americans were less than 40% of the voting age population. Id.
The analysis of the Secretary’s expert Laurence S. Rosen Ph.D., does not shed doubt on Metzger’s findings. Rosen has been a demographer and research professional for over forty years and, in 1980, was selected as Michigan’s first state demographer. Dkt. No. 102-3, pp. 4–6 (Pg. ID 1833–35). Based on his review of Metzger’s data and conclusions, Rosen found a “weak level of association between race and straight-ticket voting across the state.” Id. at p. 15 (Pg. ID 1844). He claims that straight-ticket voting is popular in both communities that have many AfricanAmericans and communities with few or no African-Americans. Id. at p. 16 (Pg. ID 1845).
He notes, for instance, that in several communities in Ottawa County, AfricanAmericans make up no more than 1% of the population. Id. at pp. 19–20 (Pg. ID 1848–49). Yet 56% to 64% of voters in those communities utilized the straightparty option. Id. He also highlights that Ottawa County had a 54.7% straight-ticket voting rate, and only 1.4% of its voting age population was African-American. Id. at p. 22 (Pg. 1851).
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Likewise, Rosen observes that Allegan County, Livingston County, and Washtenaw County have few African-American residents, but these counties’ residents voted a straight-party at rates between 45.8% and 50.9%. Id. Thus, according to Rosen, race is not driving the high straight-ticket voting rates demonstrated by Metzger. Id. at p. 16 (Pg. ID 1845). Rather, Rosen believes that other factors better explain the variation in straight-ticket voting rates. Id.
Rosen’s findings, however, are unconvincing when contrasted with Plaintiffs’ evidence that every community with a high percentage of African-Americans of voting age has an exceptionally high straight-ticket voting rate. Dkt. No. 108-2, p. 9 (Pg. ID 2402). Indeed, the voting rates in communities with high percentages of African-Americans of voting age dwarf those of the small number of communities identified by the Secretary as having high straight-party voting rates and low African-American populations. In addition, the straight-party voting rate of communities with a high percentage of African-Americans of voting age far exceeds the statewide rate of straight-party voting. Therefore, it is of no moment that a few, discrete communities have high rates of straight-party voting, despite having a low or non-existent African-American voting age population.
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1. Lower Levels of Literacy and PA 268
Plaintiffs have also offered forceful evidence that African-Americans in Michigan have lower levels of literacy than whites. Plaintiffs have also shown that, as a result of these lower levels of literacy, PA 268 will disproportionately cause African-Americans to (1) take more time than whites in completing ballots; and to (2) abandon their ballots at higher rates than whites out of frustration or lack of ability. In support of these contentions, Plaintiffs present an expert report by Daphne Ntiri, an African-American studies Professor at Wayne State University. Dkt. No. 108-5, p. 2 (Pg. ID 2511). She specializes in adult education and literacy. Id.
Ntiri has determined that African-Americans have, on average, lower levels of literacy than whites. Id. at pp. 4–5 (Pg. ID 2513–14). She has reached this finding partly based on evidence that “there is clearly a direct correlation between the rate of illiteracy in Michigan cities and the size of the African American population [in Michigan cities].” Id. at p. 14 (Pg. ID 2523). Ntiri additionally relies on a United States Census Bureau study regarding educational attainment in Michigan. Id. at p. 13 (Pg. ID 2522). The Census Bureau study covers 2011 to 2015, and reflects that in Michigan African-Americans were less likely to have completed high school than whites. Id. Specifically, 84.1% of African-Americans had completed high school, whereas 91.4% of whites had a high school education. Id.
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Ntiri then explains that African-Americans’ lower levels of literacy affects their ability to vote. She contends that with the PA 268 ballot African-Americans would be more likely than whites to encounter confusion and to experience difficulty casting votes. Id. at pp. 4–5 (Pg. ID 2513–14). This confusion and difficulty, Ntiri asserts, would lead to African-Americans spending relatively more time in the voting booth and suffering from higher rates of ballot roll-off. Id. at p. 5 (Pg. ID 2514).
The Secretary responds by arguing that Ntiri has little knowledge of voting procedures and is therefore unqualified to discuss the impact of literacy on voting. Dkt. No. 147, p. 24 (Pg. ID 4439). The Secretary also offers evidence from Stephan Thernstrom, a former History Professor at Harvard University who has researched issues involving race, ethnicity, and immigration. See Dkt. No. 102-18, pp. 3, 41 (Pg. ID 2182, 2220).
Thernstrom maintains that Ntiri’s report is absent of conclusions and evidence regarding Michigan. Id. at p. 15 (Pg. ID 2194). Instead, he argues, her analysis solely involves nationwide research. Id. Thernstrom continues that Ntiri fails to explain the method for selecting the fifteen cities which she says demonstrate a correlation between African-American populations and literacy levels. Id. at p. 16 (Pg. ID 2195). Relatedly, he maintains that Ntiri’s conclusions are unfounded because she did not conduct a methodological study. Id. at pp. 16–17 (Pg. ID 2195– 96). Rather, Thernstrom asserts, her findings connect certain variables in the
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National Adult Literacy Survey (“NALS”) sample of estimating literacy levels. Id. at p. 17 (Pg. ID 2196).
Thernstrom also contests Ntiri’s finding that individuals with low literacy will have difficulty voting. He admits that people with low literacy might have problems locating an intersection on a street map, but he argues that they can vote without trouble because they can identify the expiration date on a license. Id. at pp. 17–18 (Pg. ID 2196–97). Finally, Thernstrom attempts to discredit Ntiri by asserting that she provides no evidence for her conclusion that persons with low literacy will be hesitant to seek assistance when in the voting booth or will become frustrated while attempting to read a ballot, and thus, will not complete a ballot. Id. at p. 18 (Pg. ID 2197).
The Court finds that, through Ntiri, the Plaintiffs have shown that relatively lower levels of literacy in the African-American community will contribute to longer wait times for African-American voters because these voters are more likely to experience confusion in completing a ballot. The Secretary is right, of course, that Ntiri is not an expert on voting. But she is an expert on adult literacy and has noted that individuals with low literacy have difficulty identifying intersections on a street map. The Court finds that this evidence convincingly suggests that voters with low literacy would struggle with a ballot having potentially seventy-nine individual selections.
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Contrary to Thernstrom’s contentions, Ntiri need not have conducted a study specifically targeted to the issues in this litigation. Instead, her explanation of the interplay of variables in the NALS, combined with her considerable expertise in adult literacy, is a sufficient basis for her to make findings regarding people with low literacy.
Accordingly, the Court determines that African-Americans will disproportionately experience longer lines and wait times as a result of PA 268.
C. PA 268 and Voter Deterrence
PA 268 will disproportionately deter African-Americans from voting. But the Court must first explain its finding that PA 268 will deter voters generally. As evidence that longer lines and wait times will deter voters from attending the polls, Plaintiffs cite to a report by Charles Stewart III, a Professor of Political Science at the Massachusetts Institute of Technology. Dkt. No. 1-3. This report warrants considerable weight.
Stewart III concluded “that long lines discourage voting, lower voter confidence, and impose economic costs.” Id. at p. 17 (Pg. ID 51). In particular, based on the results of a 2012 survey, Stewart III determined that long lines deterred
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730,000 people from voting in the 2012 presidential election. Id. at p. 18 (Pg. ID 52).
Likewise, numerous elections officials have said that longer lines and wait times will deter voters. Baxter, the Director of Elections in Detroit, said “[l]onger lines will deter voters from voting either by not joining the line or leaving the line and the polling place.” Dkt. No. 1-15, pp. 10–11 (Pg. ID 289–90). Swope, the Lansing City Clerk, concurred with Baxter’s assessment. Id. at p. 18 (Pg. ID 297).
Plaintiffs also present expert evidence in support of their assertions. Plaintiffs’ expert Allen deduced that every additional sixty minutes of waiting time would deter 3% of registered voters from attending the polls. Dkt. No. 108-4, pp. 12–13 (Pg. ID 2499–2500). This finding resulted from a study of Ohio and Florida voters in the 2002 and 2014 elections, respectively. Id. at pp. 13–14 (Pg. ID 2500– 01). Allen concluded, however, that Michigan voters would behave similarly in these circumstances. Id. at p. 15 (Pg. ID 2502). Applying the 3% theory to this case, Allen gathers that longer lines and wait times stemming from PA 268 would deter between 13,000 and 22,000 African-Americans from voting in a given election. Id. at p. 18 (Pg. ID 2505).
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D. PA 268 and Deterred African-American Voters
The Court finds that PA 268 will disproportionately deter African-Americans from voting. The parties use North Carolina as a proxy for the impact of PA 268 on African-Americans in Michigan. This comparison is not perfect, but the Court will not simply “wear[] blinders.” Ohio Democratic Party v. Husted, 834 F.3d 620, 629 (6th Cir. 2016). And the Court finds that this examination supports Plaintiffs’ claim that PA 268 will disproportionately deter African-Americans in Michigan from voting.
The parties’ reliance on North Carolina here is not controlling because North Carolina and Michigan have quite different voting regulations. North Carolina permits both early voting and no-reason absentee voting, and these measures ease access to the polls. See N.C. GEN. STAT. ANN. §§ 163A-1295, -1300–04; see also N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 216–17 (4th Cir. 2016). Michigan, of course, allows neither voting method.
Yet North Carolina is a useful comparison because it eliminated straight-ticket voting in 2013. Thus, there is data available from elections in North Carolina with straight-party voting (pre-2013) and without straight-party voting (post-2013).
Plaintiffs and the Secretary vigorously dispute how the elimination of straightparty voting impacted African-American voter turnout in North Carolina. And their
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disagreement extends to what that impact suggests about the effect of PA 268 on African-American voter turnout in Michigan.
On this issue, Plaintiffs offer expert analysis from Jason Roberts, a Professor of Political Science at the University of North Carolina at Chapel Hill. Roberts determined that in areas in North Carolina where voters used the straight-party option at a high rate in 2012, voter turnout was “down considerably” in 2016.8 Dkt. No. 108-3, p. 16 (Pg. ID 2473). “Given that straight ticket voting is currently utilized at higher rates in counties with large African American populations,” Roberts concludes that “this reduction in voter turnout would disproportionately affect African American voters.” Id. at p. 27 (Pg. ID 2484). Specifically, he contends that the absence of the straight-party option in 2016 deterred from voting 8% of AfricanAmericans who both voted in 2012 and resided in high straight-ticket voting counties. Id. at pp. 17–18 (Pg. ID 2474–75). Roberts asserts that this finding holds after controlling for several factors, including county poverty levels and county regulations for early voting. Id. at p. 17 (Pg. ID 2474).
Roberts steadfastly claims that wait times and longer lines generated by the elimination of straight-party voting caused some of the downturn in turnout. But he admits that the removal of straight-ticket voting was not the sole cause of the entire
8 All agree that comparing voter turnout across presidential elections is more appropriate than contrasting turnout in presidential elections with that in midterm elections.
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decline in turnout. See id. at pp. 15–16 (Pg. ID 2472–73). He submits, for example, that former President Barack Obama’s absence from the 2016 election caused some of the downturn, as African-Americans turned out to vote in record numbers for Obama in 2012. Roberts also concedes that he did not identify—and did not attempt to identify—the amount of downturn in African-American voter turnout in North Carolina attributable to Obama’s absence from the 2016 ballot. Dkt. No. 141-4, pp. 19–20 (Pg. ID 3558–59).
Roberts’s views warrant some weight, even considering the absence of findings attributing a specific amount of decline in voter turnout to a relevant consideration. He convincingly reports that certain counties with high straight-party voting rates had high voting-age populations of African-Americans, and that these counties experienced a substantial decrease in voter turnout from 2012 to 2016. And the substantial size of the decline in voter turnout suggests that this drop had several causes. Accordingly, he has presented credible evidence that PA 268 will likely deter African-Americans from voting.
Through expert evidence from Herrnson and Thernstrom, the Secretary offers a different view of African-American voter turnout in North Carolina. First, Herrnson’s findings are of no value to the Court. He argues that longer wait times will not deter any Michigan residents from attending the polls. In Herrnson’s view, people will vote no matter how long it takes to do so and no matter the obstacles.
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This is true, Herrnson supposes, because individuals only vote for reasons not linked to the outcome of an election. Dkt. No. 102-6, pp. 9–10 (Pg. ID 1990–91). These reasons supposedly include for personal satisfaction and for personal or civic obligation. Id.
This assertion not only conflicts with common sense, but also the weight of the evidence. Therefore, the Court will not give any weight to Herrnson’s attacks on Roberts’s theory about how PA 268 will deter African-Americans in Michigan from voting.
Thernstrom’s analysis, on the other hand, is credible. Citing voter turnout in mid-term elections in North Carolina in 2010 and 2014, Thernstrom maintains that African-American turnout actually increased by 1.84% from 2010 to 2014, despite the abolition of straight-ticket voting. Thernstrom concedes, however, that AfricanAmerican voter turnout in North Carolina decreased by 5.89% in the presidential elections during this period, in 2012 and 2016. Dkt. No. 102-18, p. 21 (Pg. ID 2200). But Thernstrom asserts that this decrease was largely a result of African-Americans turning out to vote in high numbers for Barack Obama in 2012 and not turning out in the 2016 election, as Obama was not on the ballot.
Thernstrom continues that Roberts failed to control for Obama’s popularity with African-American voters in North Carolina. Id. at pp. 23–24 (Pg. ID 2202–03). Comparing African-American voter turnout nationally with that in North Carolina
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in 2012 and 2016, Thernstrom finds that the drop in African-American voter turnout nationwide was 1.9% greater than the decline in African-American turnout in North Carolina. Id. at p. 24 (Pg. ID 2203). Thus, according to Thernstrom, the elimination of straight-ticket voting did not disproportionately impact African-American voters in North Carolina. Id.
The Court determines that this evidence undermines some of Roberts’s conclusions. But Thernstrom’s findings do not warrant rejection of Roberts’s analysis. Indeed, Thernstrom contends that African-Americans in North Carolina were more likely to vote in the 2016 election than African-Americans throughout the country, but he offers no evidence as to why. Id. Innumerable variables may be relevant to African-Americans’ voting rates throughout the country. Thus, the Court will not adopt Thernstrom’s findings.
Second, Roberts’s evidence shows that 8% of African-American voters in high straight-ticket voting counties did not vote in 2016, although these voters went to the polls in 2012. This figure is so high that it accommodates multiple, meaningful causes for the decline in African-American turnout, including both the elimination of straight-ticket voting and the absence of Obama from the 2016 ballot. Thernstrom admits that it is especially difficult to identify the percentage of African-Americans who declined to vote in 2016 either (1) because Obama was not on the ballot, or (2) because of longer lines and wait times generated by the elimination of straight-ticket
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voting. See id. at p. 22 (Pg. ID 2201) (noting that “[p]erhaps Dr. Roberts barely mentioned President Obama in his report because political scientists who work with mathematical models of voting behavior necessarily focus their attention on variables that can be measured precisely.”). Therefore, the Court will credit Roberts’s testimony and findings regarding PA 268 and its deterrence of AfricanAmerican voters in Michigan.
In addition to the comparison with North Carolina, conditions specific to Michigan further suggest that PA 268 will disproportionately deter AfricanAmericans from voting. Indeed, African-Americans’ high rate of straight-ticket voting and housing patterns in Michigan indicate that PA 268 will disproportionately deter African-Americans from voting. Evidence reveals that African-Americans in Michigan overwhelmingly tend to live in areas where they constitute a high percentage of the population, and thus, they tend to vote in the same precincts. A 24/7 Wall Street article published just last year noted that the Detroit, Warren, and Dearborn, Michigan area was the most segregated metropolitan area in the United States. Dkt. No. 137-8, pp. 19–21 (Pg. ID 3344–46). “55.3% of Detroit’s African American population lives in neighborhoods where at least 4 in 5 residents are black, the largest share of any U.S. metro area,” according to 24/7 Wall Street. Id. at p. 20 (Pg. ID 3345). Because African-Americans use the straight-party option at such a high rate, the additional time that PA 268 would impose on African-American voters
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would be especially pronounced in areas in Michigan with substantial populations of African-Americans of voting age.
For instance, in the 2016 election 77.7% of voters used the straight-party option in the twelve communities where African-Americans were the majority demographic. Dkt. No. 108-2, p. 9 (Pg. ID 2402). The elimination of straight-ticket voting would force 77.7% of voters in those communities to take significantly more time completing a ballot, and this increase in time is substantial. Thomas, the former elections official, supposed that it would take each person who previously voted a straight-ticket an additional three minutes to vote without that option. Likewise, Assistant Professor Allen determined that it would take voters at least 25% longer to shade in eighteen ovals than to shade in one.
Plaintiffs also note that longer lines in Michigan for African-Americans as compared to whites is consistent with the national trend. Dkt. No. 1-3, p. 14 (Pg. ID 48). Professor Stewart III, for example, observed that across the country “wait times . . . are unevenly distributed demographically,” as in 2012, white voters waited an average of twelve minutes to vote. Id. By contrast, African-Americans waited an average of twenty-four minutes to vote. Id.
In countering this evidence, the Secretary again relies on Thernstrom. Thernstrom observes that these statistics are irrelevant because they are national and not Michigan-specific. Dkt. No. 102-18, p. 27 (Pg. ID 2206). That contention is
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unconvincing, however. The national trend simply corroborates Plaintiffs’ evidence specific to Michigan—evidence demonstrating that PA 268 will disproportionately deter African-Americans from exercising their right to vote, given that they will face significantly greater wait times and longer lines. Based on the above, the Court determines that PA 268 will disproportionately deter African-Americans from voting.
III. Burden of Proof
In a civil bench trial, plaintiffs must prove their claims by a preponderance of the evidence. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993). That is, a court must “believe that the existence of a fact is more probable than its nonexistence before [the court] may find in favor of the [plaintiffs] who ha[ve] the burden to persuade the [court] of the fact’s existence.” Id. (internal quotation marks omitted) (quoting In re Winship, 397 U.S. 358, 371–372 (1970) (Harlan, J., concurring)).
Where, as here, plaintiffs request a permanent injunction, a court must evaluate the following: (1) whether the plaintiffs have succeeded on the merits; “(2) whether the [plaintiffs] would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4)
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whether the public interest would be served by issuance of the injunction.” Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012) (internal quotation marks omitted) (quoting Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004)).
IV. Conclusions of Law
The Plaintiffs have demonstrated by a preponderance of the evidence that PA 268 unduly burdens the right to vote, 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. Accordingly, the Court holds that PA 268 violates the Equal Protection Clause under both the Anderson-Burdick framework (Count I) and that clause’s prohibition on intentional discrimination (Count II). The Court further holds that PA 268 contravenes Section 2 of the VRA (Count III).
The Court will address each holding in turn.
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A. Equal Protection Claim (Count I)
The Plaintiffs have shown that PA 268 burdens African-Americans’ voting rights, and that the Secretary’s stated interests for PA 268 do not warrant the burden imposed on those rights. PA 268, therefore, violates the Equal Protection Clause.
In this case, the Court must resolve the collision of two interests. On one hand, states have a “clear prerogative to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives.’ ” Ohio Democratic Party, 834 F.3d at 626 (quoting U.S. CONST. art. I, § 4). And on the other, “the Supreme Court has readily acknowledged the general right to vote as implicit in our constitutional system.” Id. (internal quotation marks omitted) (quoting Mixon v. Ohio, 193 F.3d 389, 402 (6th Cir. 1999)). When a court balances these considerations, it must apply the Anderson-Burdick framework. See Anderson v. Celebrezze, 460 U.S. 780 (1983); see also Burdick v. Takushi, 504 U.S. 428 (1992). That framework instructs courts as follows:
[T]he court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. Finally, it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Ohio Democratic Party, 834 F.3d at 626–27 (alterations in original) (quoting Green
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Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015)). The Anderson-Burdick framework comprises three standards of judicial
review. The most stringent standard applies where “a state imposes ‘severe restrictions’ on a plaintiff’s constitutional rights (here, the right to vote)[.]” Id. at 627 (quoting Burdick, 504 U.S. at 434). In this situation, “regulations survive only if ‘narrowly drawn to advance a state interest of compelling importance.’ ” Id. (quoting Burdick, 504 U.S. at 434). In contrast, the least demanding standard of review is “closer to rational basis[.]” Id. (internal quotation marks omitted) (quoting Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016)). Regulations are subject to this standard if they are “minimally burdensome and nondiscriminatory[.]” Id. (internal quotation marks omitted) (quoting Ohio Council, 814 F.3d at 335). And in this scenario “the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. (quoting Ohio Council, 814 F.3d at 335). The third standard of judicial review is for “[r]egulations falling somewhere in between—i.e., regulations that impose a more-than-minimal but less-than-severe burden[.]” Id. (citing Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)). These regulations “require a ‘flexible’ analysis, ‘weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’ ” Id. (quoting Green Party of Tenn., 767 F.3d at 546).
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The Court finds that PA 268 imposes a “more-than-minimal but less-thansevere burden” on African-Americans’ right to vote. See also Johnson II, 833 F.3d 656, 663 (noting that this Court did not err in reaching that same conclusion at the preliminary injunction stage of this litigation). The Court will thus apply the third, flexible standard here.
Plaintiffs’ facial challenge to PA 268 means that they seek “to invalidate the law in each of its applications, to take the law off the books completely.” Green Party of Tenn., 791 F.3d at 691 (citing Speet v. Schuette, 726 F.3d 867, 871 (6th Cir. 2013)). Plaintiffs, therefore, “bear a heavy burden of persuasion.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 200 (2008). They must demonstrate by a preponderance of the evidence “that no set of circumstances exist under which [the statute] would be valid.” Green Party of Tenn., 791 F.3d at 691 (alteration in original) (internal quotation marks omitted) (quoting Speet, 726 F.3d at 872). In sum, the Plaintiffs must prove—by a preponderance of the evidence—that the burden PA 268 imposes on African-Americans’ right to vote outweighs the State’s asserted interests, and that there are no circumstances under which PA 268 is constitutional.
The Plaintiffs have made this showing. As the Anderson-Burdick framework requires, the Court will (1) address the burden on African-Americans’ voting rights,
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(2) assess the Secretary’s justifications for PA 268, and (3) explain why these justifications do not warrant the burden here.
1. Burden on African-Americans
The Secretary argues that PA 268 changes only the manner of completing a ballot, and does not impact the right to vote. The record suggests otherwise. PA 268 has a more-than-slight, but not severe effect on African-Americans’ right to vote. Although all Michigan voters will wait much longer to vote under PA 268, African-American voters will face disproportionately longer lines and wait times, and will be deterred from voting.
This is apparent for two reasons. First, because African-Americans use the straight-party option far more than whites. Second, 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, either as a result of frustration or lack of ability. Both of these facts will work to deter a substantial and disproportionate number of African-Americans from voting.
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a) Significantly Increased Wait Times and Longer Lines
Plaintiffs’ lay evidence persuasively demonstrates that PA 268 will increase voting wait times for all Michigan residents. Numerous elections officials and clerk associations either testified in opposition to PA 268 during legislative hearings, submitted affidavits here asserting that PA 268 would introduce longer wait times, or did both. Dkt. No. 108-13, p. 6 (Pg. ID 2621); Dkt. No. 1-15, p. 8, 16 (Pg. ID 287, 295). And they predicted a doomsday-like situation. The House Fiscal Analysis described this testimony, noting that “[c]ity and county clerks testified that the average wait time to vote in Michigan is already 22 minutes, and that this measure could double that wait.” Dkt. No. 108-13, p. 7 (Pg. ID 2622). The thenChair of the House Elections Committee said longer lines caused by PA 268 would be a “nightmare,” absent the enactment of no-reason absentee voting legislation. Dkt. No. 137-3, p. 36 (Pg. ID 3260). The State Legislature, of course, did not pass no-reason absentee voting legislation, which was initially tie-barred to SB 13.
An elections clerk forebode that PA 268 would lead to “disaster.” Id. at p. 31 (Pg. ID 3255). Another clerk was “grave[ly] concern[ed] over the lines [PA 268] would create on voting day.” Id. at p. 29 (Pg. ID 3253). For thirty-six years Christopher Thomas was the Director of the Michigan Bureau of Elections, and he concluded that PA 268 will generate longer wait times. Dkt. No. 141-19, p. 2 (Pg.
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ID 4049). In particular, he thought that it would take at least three more minutes for a voter to complete a ballot without a straight-party option. Id. Additionally, in a hearing before the House, both the Michigan Association of Municipal Clerks and Michigan Association of County Clerks testified in opposition to PA 268. Dkt. No. 108-13, p. 6 (Pg. ID 2621).
Only two clerks have supported PA 268. The Clinton Township Clerk submitted a letter to the House supporting the law. Id. And the Calhoun County Clerk authored an affidavit in this case asserting that PA 268 will not cause longer lines or wait times. Dkt. No. 141-14, p. 4 (Pg. ID 3983).
Election officials’ overwhelming opposition to PA 268, based on their belief that PA 268 would create drastically longer lines, is strong evidence that PA 268 will indeed create longer lines and wait times for voters. As clerks oversee and administer election processes, they have intimate knowledge about Michigan elections. Clerks are therefore best positioned to understand the probable impact of PA 268 on voters. The evidence involving clerks, then, greatly contributes to Plaintiffs’ proof that PA 268 will burden Michigan voters by introducing longer wait times.
Plaintiffs’ expert evidence likewise indicates that PA 268 will produce longer lines and increased wait times at the polls. Associate Professor Allen, after conducting a simulation, found that PA 268 would increase voting times by at least
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25% for each person that had previously voted a straight-ticket. Dkt. No. 108-4, p. 10 (Pg. ID 2497). The Secretary’s expert Graves attacks Allen’s simulation, contending that Allen had failed to account for delays at the registration line and counted imprecisely the number of voting booths at certain precincts. Delays at registration, however, may consist of some—but not all—of the twenty minutes that Michigan residents currently spend at the polls.
Yet even if Graves is correct that Allen has overstated the additional time that PA 268 would cause individuals to spend in the voting booth, Graves cannot credibly argue that PA 268 would not increase the time spent in voting booths. Indeed, Allen’s simulation has demonstrated that voting for each candidate individually takes drastically longer than voting a straight-ticket. Allen has also shown that the increased time for each voter is not de minimis, even if that time is not precisely 25% greater than the time spent voting for each candidate individually.
Plaintiffs’ claim that PA 268 inflicts a more-than-slight burden gains significant force when one considers that Allen’s predicted time increase of 25% covers almost half of Michigan voters, or 1.5 to 2.5 million voters. Dkt. No. 108-2, p. 9 (Pg. ID 2402); see also Dkt. No. 108-13, p. 7 (Pg. ID 2622). PA 268, then, would inject a substantial amount of time into the voting process. As a result, Plaintiffs have illustrated by a preponderance of the evidence that PA 268 will cause significantly longer wait times.
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This finding is undisturbed by the analysis of the Secretary’s expert Herrnson and the Secretary’s contention that administrative remedies will alleviate Election Day congestion. First, Herrnson maintains that PA 268 will not introduce longer wait times because straight-ticket voting is confusing. According to Herrnson, straight-ticket voting confuses Michigan residents, requiring residents to request assistance, which in turn causes delay at the polls. Without straight-party voting, Herrnson argues, ballots will be less confusing, leading to fewer requests for assistance, and ultimately, less delay.
Herrnson’s contention is not supported by his report or the record, however. Straight-ticket voting may confuse some Michigan voters, but it has been available in Michigan for 127 years and 49.2% of voters used it in the 2016 election. Dkt. No. 108-2, p. 9 (Pg. ID 2402). The Court, therefore, finds it implausible that straightticket voting is confusing to Michigan residents generally. Second, PA 268 might increase wait times by as much as three minutes for each person who previously voted a straight-ticket. Consequently, under PA 268, any time saved from a decline in requests for assistance will not offset the additional time that it will take for previous straight-ticket voters to complete their new ballots.
The Secretary next unpersuasively argues that administrative remedies will ameliorate longer lines. Dkt. No. 141, p. 18 (Pg. ID 3434). She emphasizes that a 2,999 voter limit in a given precinct reduces or prevents congestion at the polls. See
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MICH. COMP. LAWS § 168.661. And she asserts that elections officials, including clerks, have excellent training and ample discretion to implement administrative remedies. According to the Secretary, these administrative remedies would include increasing the number of laptops and voting booths at precincts, and improving voter education. Dkt. No. 141, p. 21 (Pg. ID 3437). Additionally, the Secretary insists that the current absentee voting law is sufficient to mitigate longer lines, noting that 32% of registered voters in Michigan are eligible to vote absentee because they are at least sixty years old. Id. at p. 19 (Pg. ID 3435).
These arguments are unpersuasive. Almost all of the elections officials who have commented on PA 268 have predicted desperately long lines and wait times. Their anxiety about the effect of PA 268 implies that the available administrative remedies are insufficient. In the face of this strong evidence from elections officials, the Court cannot accept the Secretary’s unfounded assertions. Indeed, the Secretary offers no evidence regarding how many people actually vote absentee in Michigan.
What is more, Michigan already has some of the longest lines and wait times in the country. And this fact sheds further doubt on the Secretary’s argument that the available administrative remedies would ameliorate lines and wait times potentially twice as long as those facing Michigan voters today. See Dkt. No. 10813, p. 7 (Pg. ID 2622). In light of the above, the Court holds that PA 268 will impose increased wait times on all Michigan voters.
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b) Disproportionately Longer Wait Times and Lines for African-Americans
African-Americans, however, will disproportionately suffer increased wait times and longer lines as a result of PA 268. Although the Secretary rightly maintains that PA 268 is a facially neutral statute, that fact does not answer the critical question of whether PA 268 disproportionately impacts African-American voters. Plaintiffs’ expert Metzger has directly addressed that issue by finding a positive correlation between the percentage of African-Americans in a given community and the percentage of voters in that community who used the straightparty option in the 2016 election.
Metzger determined, for example, that in the twelve communities in which African-Americans were the majority demographic, 77.7% of voters used the straight-ticket option. Dkt. No. 108-2, p. 9 (Pg. ID 2402). Similarly, the seven communities in which African-Americans constituted 40 to 49.9% of the voting-age population had a straight-ticket voting rate of 68.9%. Id. On the other hand, 49.2% of all Michigan voters used the straight-party option in the 2016 election. Id. And in communities where African-Americans constituted less than 40% of the votingage population, the straight-ticket voting rate was 46.5%. Id.
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In countering this evidence, the Secretary shows that some communities with few or no African-Americans vote a straight-ticket at high rates. Dkt. No. 102-3, p. 16 (Pg. ID 1845). This argument, however, ignores data that straight-ticket voting rates in communities with substantial African-American voting-age populations are much higher than the statewide rates and the rates in communities with lower percentages of African-Americans of voting age as part of their population. These facts require rejection of the Secretary’s assertion that there is only a “weak” correlation between the African-American voting-age population in a community and that community’s straight-ticket voting rate. See id. at p. 15 (Pg. ID 1844). Indeed, the record indicates that this correlation is quite strong.
c) African-Americans’ Disparate Deterrence from Voting
Considerably longer lines and wait times will have a tremendously important consequence: They will deter African-Americans from exercising their right to vote. The Lansing City Clerk and Director of Elections in Detroit both asserted that the effects of PA 268 would discourage people from attending the polls. Dkt. No. 1-15, pp. 10–11, 14, 18 (Pg. ID 289–90, 93, 297). Professor Charles Stewart III reached a similar conclusion when he determined that longer lines deter voting. Dkt. No. 13, p. 17 (Pg. ID 51). Analyzing the 2012 election across the country, Stewart III
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found that 730,000 people did not vote because of long lines. Id. at p. 18 (Pg. ID 52). According to Associate Professor Allen, every additional sixty minutes of waiting time will deter 3% of registered voters from going to the polls. Dkt. No. 108-4, pp. 12–13 (Pg. ID 2499–2500). Based on this formula, Allen found that longer lines would discourage 13,000 to 22,000 African-Americans in Michigan from voting. Id. at p. 18 (Pg. ID 2505).
PA 268 would not only deter African-Americans from voting, but it would also decrease the likelihood that African-Americans will complete their ballots. Professor Roberts makes this point using data on North Carolina voters, as North Carolina eliminated straight-ticket voting in 2013 and had elections without straightticket voting in 2014 and 2016. Dkt. No. 108-3, p. 8 (Pg. ID 2465). First, Roberts contends that in 2012, in North Carolina, there was a “strong, positive correlation” between the African-American population in a given county and the straight-ticket voting rate in that county. Id. at p. 3 (Pg. ID 2460).
He also found that North Carolina counties with high levels of straight-party voting in 2010—before the elimination of straight-party voting—had the greatest ballot drop-off from 2012 to 2016. Id. at p. 14 (Pg. ID 2471). With the elimination of straight-ticket voting in North Carolina, “[i]n 2010, the average level of roll off from the U.S. Senate contest to the North Carolina House contest in North Carolina counties was 8.3%, while in 2014 it was 17.79%.” Id. at p. 13 (Pg. ID 2470). The
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reason for this decline, Roberts believes, is that “[l]ong ballots that do not have a straight ticket option tend to induce voter fatigue as voters struggle to wade through the ballot.” Id. at p. 7 (Pg. ID 2464). He continues that “[f]atigued voters often turn in their ballots before they have marked choices for all races and ballot questions producing an ‘undervote’ in offices that are placed lower on the ballot.” Id. According to Roberts, ballot roll-off led to 1.5% of North Carolina voters failing to vote for United States House of Representatives contests despite voting in the presidential contest.9 Id. at pp. 7–8 (Pg. ID 2464–65).
Examining this ballot roll-off theory in Michigan, Roberts concludes that across the 2012, 2014, and 2016 elections, straight-party voting rates are positively correlated with ballot completion rates. Id. at p. 21 (Pg. ID 2478). Roberts contends that “voter fatigue” is apparent in Michigan Supreme Court elections, which are nonpartisan elections. Id. at p. 24 (Pg. ID 2481). Voters in counties having high straightticket voting rates are more likely to vote in those races, Roberts says. Id. Stephan Thernstrom, one of the Secretary’s experts, surprisingly lends credibility to Roberts’s theory of voter fatigue. He wrote that “[i]f a large fraction of the electorate takes the STV [straight-ticket voting] option, rolloff rates will inevitably be low.” Dkt. No. 102-18, p. 25 (Pg. ID 2204).
9 Roberts did not evaluate contests further down the ballot. Dkt. No. 108-3, p. 7 n.11 (Pg. ID 2464).
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Yet Thernstrom attacks Roberts’s conclusions, alleging that Roberts has not shown a relationship between race and ballot roll-off because Roberts evaluated race at the county level, and not as to each individual. Id. at pp. 25–26 (Pg. ID 2204–05). Put another way, Thernstrom argues that because counties are not racially homogenous, Roberts’s assessment of county preferences for straight-party voting offers no evidence about whether African-Americans had higher ballot roll-off rates than whites after North Carolina had eliminated straight-party voting. Id. at p. 26 (Pg. ID 2205).
Yet the Court finds that examining race at the county level is sufficient to demonstrate a positive correlation between the African-American population in a particular county and the ballot roll-off rate in that county. Indeed, Roberts’s sample notes the change in a county’s voting rates based on a change in the composition of that county’s demographic. In examining 2012 data, Roberts found that the straightticket voting rate in a given county would increase by 0.35% where there was a 1% increase in that county’s population consisting of African-Americans. Dkt. No. 1083, p. 9 (Pg. ID 2466). And Roberts’s sample is sufficiently large as it encompasses every county in North Carolina. See id.
Beyond straight-ticket voting, ballot roll-off would also be most prevalent among African-Americans because roll-off occurs most among voters with relatively “lower levels of education and less experience voting[.]” Id. at p. 7 (Pg.
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ID 2464). Professor Ntiri determined that ballot roll-off is positively correlated with lower levels of literacy. Dkt. No. 108-5, p. 18 (Pg. ID 2527). She notes that a disproportionate percentage of African-Americans have lower literacy levels. Therefore, according to Ntiri, African-Americans are more likely to experience frustration with a ballot that necessitates voting for each candidate individually and for numerous proposals—sometimes as many as seventy-nine offices and proposals. Id.; Dkt. No. 1-15, p. 9 (Pg. ID 288). Ntiri has determined that this frustration would cause African-Americans to abandon their ballot prior to completion. Dkt. No. 1085, p. 18 (Pg. ID 2527).
She further recognizes that voters may request assistance in voting booths, and that this assistance may lessen voter frustration or diminish ballot roll-off. Id. But her experience with adults having low literacy has led her to believe that many of these people would not seek help out of embarrassment. Id. Ballot roll-off, then, is another burden that African-Americans would disproportionately bear as a result of PA 268.
In spite of this evidence, the Secretary contends that PA 268 imposes no burden on African-Americans. Instead, the Secretary argues, PA 268 just impacts the manner of voting. See Dkt. No. 141, p. 12 (Pg. ID 3428). The Sixth Circuit dismissed this argument in Johnson II, reasoning that “how a state chooses to
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regulate the manner that a person must cast a ballot undoubtedly impacts the individual right.” 833 F.3d at 663.
Further signaling that the Secretary’s argument lacks merit is that the burden asserted here sharply contrasts with the slight burden addressed in Ohio Democratic Party. There, “[t]he undisputed factual record show[ed] that it’s easy to vote in Ohio. Very easy, actually.” 834 F.3d at 628. The Ohio Democratic Party court even noted that Ohio’s voting system was more generous than Michigan’s, as Ohio permits a 29-day early voting period and Michigan does not allow any early voting. Id. Additionally, Ohio has authorized no-reason absentee voting, whereas Michigan has not. See id. at 630. Thus, Ohio only minimally burdened voters by eliminating six days of early voting and requiring that voting and registration occur on different dates. See id.
Michigan voters, by contrast, generally must go to the polls on Election Day. To be sure, “[t]he Constitution does not require any opportunities for early voting.” See id. at 623. But the Constitution does require that voting regulations not unduly burden the right to vote, and the record here shows that PA 268 significantly increases voting times and that these longer times will deter African-Americans from voting. PA 268, then, impacts African-Americans’ right to vote and not simply the manner of voting. Accordingly, Plaintiffs have demonstrated that AfricanAmericans will disproportionately suffer numerous burdens from PA 268, including
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drastically longer wait times and voting lines, greater deterrence from voting, and increased ballot roll-off.
2. State Interests Supporting PA 268
As the Plaintiffs have demonstrated that SB 13 imposes a more-than-minimal, but less-than-severe burden on African-Americans’ right to vote, “[t]he State must propose an ‘interest sufficiently weighty to justify the limitation.’ ” Obama for America v. Husted, 697 F.3d 423, 433 (6th Cir. 2012) (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)). The Secretary’s interests are reasonable. Yet they are not “sufficiently weighty” to justify the effect that PA 268 has on AfricanAmericans’ right to vote.
The Secretary maintains that PA 268 supports the following interests: (1) it encourages voters to examine each candidate individually, without regard for political party; (2) it increases the likelihood that voters will complete the nonpartisan section of the ballot; and (3) it reduces confusion about how to complete a ballot. The Secretary’s first interest—encouraging voters to learn more about candidates, to participate in elections, and to be “more deliberate in voting”—does not justify the burden that PA 268 imposes on African-American voters. Dkt. No. 141, p. 25 (Pg. ID 3441). The record is absent of evidence indicating that the
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elimination of straight-ticket voting will elicit more interest in gathering information about candidates. To the extent the Secretary argues that voting a straight-ticket reflects a lack of “deliberateness” or participation in the democratic process, the Secretary is mistaken. There is no evidence here illustrating that straight-ticket voters know less about candidates or participate less in elections. Similarly, the record lacks any indication that straight-ticket voters are less intentional when completing a ballot.
As for the second interest, the record also lacks sufficient evidence that PA 268 will lead to higher voting rates in nonpartisan elections. The only evidence supporting this conclusion is an affidavit from the Calhoun County Clerk. See Dkt. No. 141-14, p. 4 (Pg. ID 3983). And that clerk lacks credibility; her views on whether PA 268 will cause longer lines contrast with those of virtually every other clerk and elections official whose opinion is reflected in the record.
Conversely, there is strong evidence that PA 268 will drastically decrease voting rates for nonpartisan contests. Professor Roberts, for example, demonstrated that “voter fatigue” sets in when voters must address numerous contests and proposals, and that this fatigue causes ballot roll-off. Dkt. No. 108-3, p. 7 (Pg. ID 2464). Roberts accordingly found that straight-ticket voting rates were positively correlated with ballot completion rates. Id. Thernstrom, although an expert for the Secretary, admitted that this positive correlation exists. Dkt. No. 102-18, p. 25 (Pg.
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ID 2204). Thernstrom even went so far as to question whether ballot roll-off is a
bad thing. Id. at p. 24–25 (Pg. ID 2203–04). He wrote “it is not obvious to me why
[Roberts’s] observed increase in rolloff is a problem. It may be a bad thing for
political parties, but the interests of parties cannot be equated with the interests of individual voters.”10 Id. at p. 24 (Pg. ID 2204). His position is hard to reconcile
with the Secretary’s contention that PA 268 will encourage voting in nonpartisan
elections and that this interest justifies the impact that PA 268 would have on
African-American voters. Therefore, the Secretary’s interest in encouraging voters
to vote in nonpartisan contests does not warrant the intrusion on voting rights
brought by PA 268.
Finally, the Secretary’s interest in eliminating confusion caused by straight-
ticket voting is not “sufficiently weighty” to sustain PA 268. In support of this
interest, the Secretary offers anecdotal evidence that voters may unintentionally undervote because they misunderstand straight-ticket voting.11 Dkt. No. 141, p. 24
(Pg. ID 3440). The evidence cited for this interest is threadbare. It does not consist
10 He then contends that straight-ticket voting is bad because it leads to greater voter error and makes it easier for voters with strong political leanings to vote, while imposing a relative cost on voters without strong leanings. Dkt. No. 102-18, pp. 24– 25 (Pg. ID 2203–04). The Court finds unpersuasive the Secretary’s arguments that straight-ticket voting leads to greater voter confusion or error, as detailed below in the discussion of the Secretary’s third interest regarding PA 268. 11 Undervoting in this situation happens when people vote a straight-ticket and then do not vote in a nonpartisan contest, thinking that their straight-ticket selection covered the nonpartisan contest. Dkt. No. 141, p. 24 (Pg. ID 3440).
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of lay testimony from people with knowledge of ballot issues. Rather, it addresses mock ballots that lay persons, including Plaintiff Williams, completed incorrectly in depositions. In contrast, at no point in his thirty-six years as Director of Elections in Michigan did Christopher Thomas receive feedback from county clerks that straight-ticket voting was confusing voters. Dkt. No. 108-9, pp. 6–7 (Pg. ID 2553– 54).
Additionally, the expert evidence that the Secretary offers on this issue is unconvincing. She principally relies on a study by Professor Herrnson, where he found that straight-ticket voting spawned more confusion than voting for each candidate individually. Dkt. No. 141, p. 24 (Pg. ID 3440); see also Dkt. No. 102-6. Herrnson’s study, however, consisted of participants who did not adequately represent Michigan voters. The participants hailed from not only Michigan, but also from New York and Maryland—two states that do not have straight-ticket voting. Therefore, the Court doubts that this study included a representative sample of Michigan residents and their familiarity with straight-ticket voting. That familiarity is consequential, as straight-ticket voting has been available in Michigan for 127 years and was used by 49.2% of Michigan residents in the most recent election. Based on the evidence presented, the Court is skeptical that straight-ticket voting confuses Michigan residents generally. See Dkt. No. 108-2, pp. 9–10 (Pg. ID 2402– 03).
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In resisting this evidence, the Secretary argues that the State’s interests in PA 268 must be sufficiently weighty here for two reasons. First, the Secretary highlights that no court has held that a law eliminating straight-ticket voting violates the Equal Protection Clause. Second, the Secretary observes that most states do not allow straight-party voting. Yet these contentions do not alter the Court’s holding; whether PA 268 violates African-Americans’ right to vote is a “jurisdiction-specific inquir[y].” Johnson II, 833 F.3d at 670 (Gilman, J., concurring). Indeed, Michigan has a unique voting administration, given its especially long ballots and its mandate that only certain qualified voters can avoid the polls on Election Day.
This singularity is illuminated by a comparison of this matter with One Wis. Inst., Inc. v. Thomsen, where a court rejected an Equal Protection Clause challenge to Wisconsin’s elimination of straight-ticket voting.12 198 F. Supp. 3d 896, 945–96 (W.D. Wis. 2016). There, plaintiffs claimed that a law eradicating straight-ticket voting burdened voters with less education and less time to vote by generating longer wait times and confusing voters. Id. at 945. But the court concluded that for these voters “straight-ticket voting was mostly a convenience,” and that “there was limited evidence about whether the elimination of straight-ticket voting caused these burdens and, if so, to what extent.” Id. at 945–46.
12 The Secretary acknowledges that there was no challenge to straight-ticket voting in McCrory, and thus, that One Wis. Inst. is the only relevant case to have addressed the legality of a law eliminating straight-party voting.
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The plaintiffs’ expert, for example, had no basis for asserting that the eradication of straight-party voting would lead to longer lines, and he presented no evidence on the specific increase in time that would result from the law. Id. The plaintiffs’ lay evidence was likewise insufficient because the only confusion in the record related to voters searching the ballot for the straight-party option, which had been removed. Id. at 946. Most damaging was that the “plaintiffs did not adduce evidence that the lack of straight-ticket voting deterred anyone from voting.” Id.
Because the Wisconsin law imposed only a slight burden on voting rights, the court used rational review to examine the plaintiffs’ challenge, as opposed to the flexible review applicable to this case. Id. at 945. And in that inquiry, the court held that Wisconsin’s interests of joining a national trend of removing straight-party voting, encouraging a more informed electorate, and reducing spoiled ballots justified the slight burden on voters’ rights.
This case is different. To start, Wisconsin allows both early voting and noreason absentee voting, so it is easier to vote in Wisconsin than in Michigan. Second, the population burdened in this case is broader than that in Thomsen, and its reliance on straight-ticket voting is more compelling. The evidence demonstrates that African-Americans in Michigan have less educational attainment than whites. Therefore, the burdened population here overlaps with that in Thomsen. And because African-Americans have a much higher straight-ticket voting rate than
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whites, African-Americans in Michigan are not using straight-ticket voting as a mere “convenience.”
Third, ample evidence—both lay and expert—confirms that PA 268 will cause dramatically longer wait times and details that specific increase in time for each straight-ticket voter. Indeed, Lyons protested that PA 268 will lead to a “nightmare” at the polls. Dkt. No. 137-3, p. 36 (Pg. ID 3260). A former Director of the Michigan Bureau of Elections predicted a three-minute increase for each straight-party voter and Associate Professor Allen’s simulation led him to project at least a 25% increase in time per straight-party voter. Dkt. No. 141-19, p. 2 (Pg. ID 4049); see also Dkt. No. 108-4, p. 10 (Pg. ID 2497).
Lastly, the Thomsen plaintiffs offered no evidence that longer lines would deter voters. Here, however, both elections officials and experts have represented that longer lines and wait times would deter voters. See Dkt. No. 1-3, p. 17–18 (Pg. ID 51–52); see also Dkt. No. 108-4, pp. 12–13 (Pg. ID 2499–2500); see also Dkt. No. 1-15, pp. 10, 18 (Pg. ID 289, 297). Thomsen, then, illustrates that the constitutionality of a law eliminating straight-ticket voting is a fact-intensive inquiry; that court’s decision to uphold a Wisconsin law abolishing straight-ticket voting does not mean that Michigan’s PA 268 is constitutional.
The Secretary also urges the Court to reject Plaintiffs’ challenge on the grounds that PA 268 is consistent with a national trend, and just nine states allow
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straight-ticket voting.13 But that statistic, standing alone, is just a snapshot of national trends in voting rights regulations. Indeed, national trends in voting regulations beyond straight-ticket voting reflect that Michigan’s election laws are outdated in other respects and not comparatively favorable to voting rights. Governor Snyder, for instance, declared that Michigan has an “archaic absentee voting law,” and he emphasized that “bringing Michigan in line with other states regarding early, or easier, access to the polls is critical.” Dkt. No. 102-8, p. 2 (Pg. ID 2083).
In particular, thirty-seven states permit early voting. Absentee and Early Voting, NAT’L CONFERENCE OF STATE LEGISLATURES (Aug. 17, 2017), http://www.ncsl.org/research/elections-and-campaigns/absentee-and-earlyvoting.aspx. And twenty-seven states allow no-reason absentee voting. Id. Taking these two facts together, Michigan is one of just thirteen states without both early voting and no-reason absentee voting.
Finally, of the fourteen states (including Michigan) that have abolished straight-ticket voting since 1994, only three still do not allow their residents to vote

13 Besides Michigan, the following states allow straight-ticket voting: Alabama,

Indiana, Kentucky, Oklahoma, Pennsylvania, South Carolina, Texas, and Utah.

Straight-ticket Voting States, NAT’L CONFERENCE OF STATE LEGISLATURES (May 31,

2017),

http://www.ncsl.org/research/elections-and-campaigns/straight-ticket-

voting.aspx#1. In 2017, Texas enacted a law which will eliminate straight-ticket

voting as of 2020. See TEX. ELEC. CODE ANN. art. § 31.012 (West 2018).

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early or to vote absentee without an excuse. Straight-ticket Voting States, NAT’L CONFERENCE OF STATE LEGISLATURES (May 31, 2017), http://www.ncsl.org/research/elections-and-campaigns/straight-ticketvoting.aspx#2. These three states are Michigan, Missouri, and New Hampshire. Therefore, Michigan may be joining a national trend by eliminating straight-ticket voting, but it is still in the minority as to almost every other voting measure which eases access to the polls.
Notably, Michigan lags behind most states in voting wait times, despite the substantial time saved with roughly half of its voters using the straight-party option. According to a 2012 50-state study, Michigan had the sixth longest average voting wait time. Dkt. No. 1-3, p. 44 (Pg. ID 78). Likewise, Lyons noted that “sometimes you would hear of long line issues, even with straight-party voting.” Dkt. No. 1373, p. 14 (Pg. ID 3238). It is not enough, then, for the Secretary to contend that PA 268 does not offend the Constitution because no court has previously sustained a challenge to the elimination of straight-ticket voting and most states require voters to select each candidate individually.
Based on the above analysis, the Court finds that PA 268 imposes a burden on African-American voters that is not severe, but also not minimal. The Court also concludes that the Secretary’s interests in PA 268 are not sufficiently weighty to warrant the corresponding burden on African-Americans’ right to vote.
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Accordingly, the Court holds that PA 268 violates the Equal Protection Clause under the Anderson-Burdick framework.
Plaintiffs have further demonstrated that they are entitled to a permanent injunction of PA 268. See Jolivette, 694 F.3d at 765. They have succeeded on the merits of their claim under the Anderson-Burdick framework. They have shown that they would suffer irreparable injury through the implementation of PA 268, as PA 268 unduly burdens the right to vote. See Obama for America, 697 F.3d at 436 (“A restriction on the fundamental right to vote therefore constitutes irreparable injury.” (citing Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986))). The injunction would not cause substantial harm to others, especially considering Michigan’s long history of straight-party voting. Finally, an injunction would serve the public interest because that remedy would protect African-Americans’ voting rights. A permanent injunction, then, is appropriate based on Plaintiffs’ Equal Protection Clause claim under the Anderson-Burdick framework.
B. Intentional Discrimination (Count II)
When it enacted PA 268, the Michigan Legislature intentionally discriminated against African-Americans in violation of the Equal Protection Clause.
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When deciding intentional discrimination claims, courts apply the framework set out in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). That framework first provides that “evidence of a policy’s disparate impact may be probative in determining whether the policymaker harbored a discriminatory intent.” Spurlock v. Fox, 716 F.3d 383, 397 (6th Cir. 2013) (citing Arlington Heights, 429 U.S. at 266). But “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Id. (internal quotation marks omitted) (quoting Arlington Heights, 429 U.S. at 264–65). Rather, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Id. (internal quotation marks omitted) (quoting Arlington Heights, 429 U.S. at 264–65). To succeed on an intentional discrimination claim, a plaintiff need not prove that discriminatory intent was the legislature’s only concern, or even “the ‘dominant’ or ‘primary’ one.” Arlington Heights, 429 U.S. at 265 (footnote omitted). It is enough to show “that a discriminatory purpose has been a motivating factor in the decision.” Id. at 265–66.
Whether a discriminatory intent or purpose exists is potentially informed by the following considerations:
[t]he historical background of the decision[,] . . . particularly if it reveals a series of official actions taken for invidious purposes; [t]he specific sequence of events leading up [to] the challenged decision; [d]epartures from the normal procedural sequence; [s]ubstantive departures[,] . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached;
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and the legislative or administrative history[,] . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. Spurlock, 716 F.3d at 397 (first, second, third, fifth, sixth, seventh, and eighth alterations in original) (quoting Arlington Heights, 429 U.S. at 267–68).
1. Disparate Impact
First, the Secretary maintains that PA 268 does not disparately impact African-Americans because PA 268 is widely-popular. As the Court has explained above, however, African-Americans in Michigan are far more likely to vote a straight-ticket than are whites. They also have relatively lower levels of educational attainment, and thus, will have greater difficulty completing a ballot than whites, leading to more time spent finishing a ballot and higher rates of ballot roll-off. Consequently, PA 268 disparately impacts African-American voters.
2. Historical Background
The historical background of PA 268 suggests that the Michigan Legislature harbored a discriminatory intent or purpose. The overwhelming majority of AfricanAmerican voters in Michigan staunchly support the Democratic Party. A 2014 Pew
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Research Center poll reflects that 81% of African-Americans in Michigan identify as or lean Democrat and only 8% identify as or lean Republican.14 Religious Landscape Study, PEW RESEARCH CENTER, http://www.pewforum.org/religiouslandscape-study/state/michigan/party-affiliation/ (last visited July 31, 2018). On the other hand, 40% of whites in Michigan lean Republican and 41% lean Democrat. See id. What is more, in 2016, in communities where African-Americans constituted 40% or more of the voting-age population, 94.8% of straight-ticket votes were for the Democratic Party. Dkt. No. 108-2, p. 25 (Pg. ID 2418).
Michigan legislators recognized these facts in passing PA 268 and were not just motivated by policy concerns in enacting the law. Indeed, Ronna Romney McDaniel conceded that she supported PA 268, in part, because it would help Republican candidates win elections. Dkt. No. 108-15, p. 7 (Pg. ID 2632). To be sure, she also considered PA 268 good policy. But she acknowledged that straightticket voting benefits Democrats more than Republicans. She was dismayed that straight-ticket voters’ support of the Democratic Party had prevented some downthe-ticket Republican candidates from winning elections, including her father. And she thought PA 268 would stop that from happening in the future. Therefore, the Secretary’s argument that policy concerns were the sole motivation for PA 268 is not borne out by the record.
14 The other 11% of African-Americans identify or lean toward neither party. 73

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Additionally, the Secretary emphasizes that the Court should not conclude that there was intentional discrimination here because states with large, and states with small, African-American populations have eliminated straight-ticket voting. This argument misses the touchstone of the intentional discrimination inquiry, however. The issue here is whether the Michigan Legislature harbored discriminatory intent in passing PA 268. Thus, although the Secretary’s allegation demonstrates that legislatures have not generally used the elimination of straight-ticket voting to intentionally discriminate against African-Americans, that allegation is not dispositive with respect to the intent of the Michigan Legislature in passing PA 268.
3. Specific Sequence of Events
The specific sequence of events further supports Plaintiffs’ intentional discrimination claim. Straight-ticket voting has been popular with Michigan voters for a long time. Michigan voters repealed laws eliminating straight-ticket voting by referendum in both 1964 and 2001. See 1964 Mich. Public Acts 240; 2001 Mich. Public Acts 269. In 1964 and 2001, at least 60% of Michigan voters supported the repeal of those laws. Dkt. No. 146, pp. 2–3 (Pg. ID 4380–81). More recently, in the 2016 election, nearly half of the State’s voters used the straight-party option. Dkt. No. 108-2, p. 9 (Pg. ID 2402). But, as PA 268 includes an appropriation, it cannot
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be repealed by referendum. See Mich. United Conservation Clubs v. Sec’y of State, 630 N.W.2d 297, 298 (Mich. 2001).
The historic and present popularity of straight-ticket voting in Michigan suggests that a referendum, if it were allowed, might reasonably result in the repeal of PA 268. This is convincing evidence that preventing a referendum on PA 268 was at least one consideration motivating the Michigan Legislature to include an appropriation in PA 268.
Indeed, several Michigan state senators expressed that sentiment. During a hearing on SB 13, Senator Curtis Hertel Jr. stated that “the only time we put appropriations in a bill is to make sure that it’s referendum-proof, because you think that what you’re doing is not popular with the people of this state.” Dkt. No. 10812, p. 15 (Pg. ID 2615). Similarly, then-Senator Steve Bieda said “I find it really appalling that we have a provision in there for an appropriation to make it referendum-proof. We know why that is being done. You know why that is being done.” Id. at p. 14 (Pg. ID 2614). He continued, saying that a senator had asked for a reason for the appropriation and “the response that he got was a proverbial cricket noise. We had no response to that. There is a reason to do this; the only reason to do this is a perceived partisan advantage.” Id.
The Secretary is correct that there is no constitutional prohibition—federal or state—on the legislature reenacting a law previously defeated by referendum. Yet
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these specific events shed light on the legislature’s motivation for attaching an appropriation to PA 268.
Additionally, SB 13 was initially tie-barred to HB 4724, which would have authorized no-reason absentee voting. Various Michigan officials, including the Governor and the then-Chair of the House Elections Committee, believed that noreason absentee voting might ameliorate the longer lines that PA 268 would create on Election Day. See Dkt. No. 102-8, p. 2 (Pg. ID 2083); see also Dkt. No. 137-3, p. 36 (Pg. ID 3260). Yet the Michigan state senate severed the tie-bar and passed SB 13 independently.
The Secretary argues that this tie-bar break only represents “politics, appropriately, at work.” Dkt. No. 141, p. 29 (Pg. ID 3445). The Court disagrees. Instead, the severance of the tie-bar supports Plaintiffs’ contention that PA 268 was intended to achieve political gain, and did so by thwarting African-Americans’ ability to vote.
4. Substantive Departures
The record also reveals that PA 268 was a substantive departure from ordinary legislative action. Straight-ticket voting is popular throughout Michigan, as the Secretary highlights in trying to convince the Court that PA 268 does not disparately
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impact African-Americans. Plaintiffs rightly respond that “[t]he obvious question then is why the legislature would want to eliminate this broadly popular method of voting.” Dkt. No. 145, pp. 8–9 (Pg. ID 4372–73).
To be sure, straight-ticket voting is most prevalent in communities with high populations of African-Americans. But Zaagman, a lobbyist for clerk associations, observed that “SB 13 will cause state-wide problems impacting urban, suburban and rural precincts across the state.” Dkt. No. 102-22, p. 2 (Pg. ID 2255). Zaagman therefore encouraged clerks to “[t]ell [legislators] how many of [the clerks’] voters, both Republicans and Democrats, avail themselves of the straight-party option.” Id. As a result, the record suggests that the Michigan Legislature substantively departed from its usual conduct in enacting PA 268.
5. Legislative or Administrative History
Much of the legislative or administrative history, including “contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports” is discussed above. Spurlock, 716 F.3d at 397 (internal quotation marks omitted) (quoting Arlington Heights, 429 U.S. at 268). Yet the Court must note that the sponsor of SB 13, Senator Knollenberg, expressed both an indifference to
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whether PA 268 increased voting times and a belief that voting wait times, no matter how long, will not deter people from voting.
The Court recognizes that in interpreting legislative history, “the views of a single legislator, even a bill’s sponsor, are not controlling.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 385 (2012) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980)). And also that “statements from only a few legislators, or those made by legislators after the fact, are of limited value.” McCrory, 831 F.3d at 229 (citations omitted). Therefore, even though the below comments have limited import, they offer additional evidence of intentional discrimination.
In a hearing on SB 13 before the House Elections Committee, Senator Knollenberg said that:
[t]o those in countries who don’t have the right to vote, I assume how long it takes to vote isn’t on their list of concerns. . . . It is time that Michigan’s elections process becomes more about people, less about political parties, and even less about how long it takes to exercise one of our most fundamental rights. Elections Hearings, MICHIGAN HOUSE OF REPRESENTATIVES VIDEO ARCHIVE 20:39– 20:46, 20:55–21:05, (December 3, 2015), available at http://house.mi.gov/MHRPublic/videoarchive.aspx. And in a follow-up question regarding this statement, Knollenberg said “to those individuals [in third world countries] that can’t vote, they just want to be able to vote, regardless of how long it
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takes to vote. In those countries where they’ve been able to vote for the first time, they’ll wait all day.” Id. at 21:49 to 22:11.
Although these comments do not establish that the Michigan Legislature enacted PA 268 with discriminatory intent, they do reflect a flagrant disregard for the burden that PA 268 would impose on African-Americans attempting to exercise their right to vote. (A burden that elections officials made clear during the legislative hearings on SB 13.) Thus, Knollenberg’s comments offer insight—however small— into the Michigan Legislature’s thinking in passing PA 268. The legislative and administrative history, therefore, deepens the Court’s understanding of the context in which the Michigan Legislature adopted PA 268.
6. Totality of Circumstances
In evaluating how these considerations fit together, the Court holds that the Michigan Legislature intentionally discriminated against African-Americans in violation of the Equal Protection Clause. Specifically, the Court finds that eliminating the Democratic Party’s success with straight-ticket voters—success especially driven by African-Americans residing in communities with high votingage African-American populations—was a motivating consideration in the Michigan Legislature’s enactment of PA 268. The goal of ending the Democratic
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Party’s success with straight-ticket voters, therefore, was achieved at the expense of African-Americans’ access to the ballot. Thus, the Michigan Legislature intentionally discriminated against African-Americans.
The circumstances here mirror those in two other voting rights cases in which courts have found intentional discrimination in violation of the Equal Protection Clause. In McCrory, for instance, the Fourth Circuit held that the North Carolina legislature engaged in race discrimination when it “intentionally target[ed] a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner[.]” 831 F.3d at 222. “This is so,” the court determined, “even absent any evidence of race-based hatred and despite the obvious political dynamics.” Id. at 222–23.
Likewise, in Thomsen, the court reasoned that “[t]he legislature’s ultimate objective was political[.] . . . But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee’s residents, who are disproportionately African American and Latino.” 198 F. Supp. 3d at 925. There was no finding of “pure racial animus” in Thomsen. Id. Yet the Wisconsin legislature still intentionally discriminated against minority voters because “suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve its political objective.” Id. (citing Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984); Rogers v. Lodge, 458 U.S. 613, 617 (1982)).
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The same is true in this case. There is no evidence of racial animus. It is unmistakable, however, that Michigan’s Republican-dominated legislature enacted PA 268 to win elections—especially down-the-ticket contests—through suppressing African-Americans’ reliably Democratic votes. Accordingly, the Court concludes that the Plaintiffs have prevailed on their intentional discrimination claim under the Equal Protection Clause.
Plaintiffs’ success on their intentional discrimination claim also warrants the remedy of a permanent injunction on PA 268. Because Plaintiffs intentional discrimination claim arises under the Constitution “irreparable injury is presumed.” Obama for America, 697 F.3d at 436 (citing ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003)). In light of the above analysis, the Court concludes that granting the Plaintiffs’ request for injunctive relief would not cause substantial harm to others and would be in the public interest. Therefore, Plaintiffs’ intentional discrimination claim, standing alone, establishes that they are entitled to a permanent injunction of PA 268.
C. Section 2 of the VRA (Count III)
The Plaintiffs have also proven that PA 268 disparately impacts AfricanAmericans by denying or abridging their right to vote, and that in doing so, PA 268
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links with social and historical conditions of discrimination to further that disparate
impact. Consequently, the Court holds that PA 268 violates Section 2 of the VRA.
Plaintiffs asserting claims under Section 2 of the VRA need not prove
intentional discrimination. See Ohio Democratic Party, 834 F.3d at 636 (citing
Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002)). Section 2 of
the VRA instead provides that:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301.
This section comprises both vote dilution and vote denial claims. See Ohio
Democratic Party, 834 F.3d at 636. The former refers to claims “alleg[ing] that a
districting practice denies minorities an equal opportunity ‘to elect representatives
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of their choice[.]’ ” Id. (quoting 52 U.S.C. § 10301). The latter, by contrast, involves allegations related to the “denial of opportunity to ‘participate in the political process.’ ” Id. (quoting 52 U.S.C. § 10301).
Here, the Plaintiffs raise a vote denial claim. The law governing such claims is not well-settled. See Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 627 (6th Cir. 2016) (declining to set forth entire standard and instead ruling on ground that plaintiffs had failed to prove disparate impact); see also Ohio Democratic Party, 834 F.3d at 636–37 (noting that “a clear standard for its application has not been conclusively established”) (collecting cases).
It is clear, however, that vote denial claims demand two inquires. “[P]roof of a disparate impact—amounting to denial or abridgement of protected class members’ right to vote—that results from the challenged standard or practice is necessary to satisfy the first element of the test[.]” Ohio Democratic Party, 834 F.3d at 637. The Sixth Circuit emphasized that this proof “is not sufficient to establish a valid Section 2 vote-denial-or-abridgement claim.” Id.
Second, plaintiffs must demonstrate that the burden is partly “caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.” Ne. Ohio Coal. for the Homeless, 837 F.3d at 627 (internal quotation marks omitted) (quoting Ohio State Conference of the NAACP v. Husted, 768 F.3d 524, 554 (6th Cir. 2014)). Put another
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way, “the second step asks not just whether social and historical conditions ‘result
in’ a disparate impact, but whether the challenged voting standard or practice causes
the discriminatory impact as it interacts with social and historical conditions.” See
Ohio Democratic Party, 834 F.3d at 638 (citing 52 U.S.C. § 10301(a)–(b)). This
element mandates consideration of the “totality of the circumstances,” which may
become clear through evaluating the “Senate Factors” detailed in Thornburg v.
Gingles, 478 U.S. 30, 43–45 (1986).15 Id.
15 The Senate Factors are as follows: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. . . . [8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. 84

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1. Disparate Impact
Plaintiffs have shown that PA 268 has a disparate impact on AfricanAmericans, as they must under Section 2 of the VRA. Indeed, this case is distinguishable from Sixth Circuit cases where election laws did not disparately impact African-Americans’ right to vote. In Northeast Ohio Coalition, for example, the Sixth Circuit determined that changes to Ohio’s absentee ballot requirements did not disparately impact African-Americans. 837 F.3d at 628. The court reached this conclusion “[b]ecause evidence of higher minority absentee-ballot usage [was] weak, and the record [did] not indicate that minority voters disproportionately benefited from assistance that is now proscribed[.]” Id.
The Ohio Democratic Party court similarly rejected a Section 2 VRA claim for lack of disparate impact, finding “that Ohio’s political processes [were] equally open to African Americans” and that “[African-American and whites’] registration numbers [were] statistically indistinguishable in every federal election since 2006.” 834 F.3d at 639.
[9.] whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. Gingles, 478 U.S. at 36–37 (citing S. Rep. No. 97–417 at 28–29).
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Conversely, there is strong evidence here that African-Americans vote a straight-ticket far more than other demographics. Roughly 50% of Michigan voters submitted a straight-ticket ballot in the 2016 election. Dkt. No. 108-2, p. 9 (Pg. ID 2402). But this percentage dropped to 46.5% when assessing only voters in communities where African-Americans constituted less than 40% of the voting-age population. Id. In majority African-American communities, however, 77.7% of voters used the straight-party option. Id. And 68.9% of voters in communities where African-Americans made up 40 to 49.9% of the voting-age population voted a straight-ticket. Id.
African-Americans’ higher usage of the straight-party option indicates that the negative consequences of PA 268 will disparately impact African-Americans. Chief among the ramifications of PA 268 is that a substantial segment of people will not vote because of dramatically longer voting lines and wait times. Plaintiffs have demonstrated that PA 268 will deter people from voting through expert evidence, from Associate Professor Allen, and lay evidence, through Professor Charles Stewart III and elections officials like Chris Swope and Daniel Baxter. See Dkt. No. 108-4, pp. 12–13 (Pg. ID 2499–2500); Dkt. No. 1-15, p. 8, 16 (Pg. ID 287, 295); see also Dkt. No. 1-3, p. 18 (Pg. ID 52).
The Secretary responds that PA 268 does not disparately impact AfricanAmericans as to deny or abridge their right to vote because “[PA 268] applies equally
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to all Michigan voters.” Dkt. No. 141, p. 32 (Pg. ID 3448). This argument, however, conflates the definition of a facially neutral law with disparate impact. The Secretary is correct that PA 268, on its face, does not treat African-Americans differently than other demographics. But after examining the effects of PA 268, the Court concludes that the law disparately impacts African-American voters. Accordingly, the Court finds that the Plaintiffs have met their burden on the first element of the Section 2 VRA test.
2. The Senate Factors
The second inquiry in a vote denial claim asks whether “a disparate impact in the opportunity to vote is shown to result not only from operation of the law, but from the interaction of the law and social and historical conditions that have produced discrimination.” Ohio Democratic Party, 834 F.3d at 638. The Senate Factors, outlined in Gingles, may offer insight into whether a plaintiff has made this showing. And “there is no requirement that any particular number of [Senate] factors be proved, or that a majority of them point one way or the other.” Gingles, 478 U.S. at 45 (quoting S. Rep. No. 97–417 at 29). The totality of the circumstances
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here, as informed by the Senate Factors,16 illustrates that PA 268 violates Section 2 of the VRA.
a) Factor 2: Racially Polarized Voting
Racially polarized voting “exists where there is a consistent relationship between [the] race of the voter and the way in which the voter votes, or to put it differently, where black voters and white voters vote differently.” Id. at 53 n.21 (alteration in original) (internal quotation marks and citations omitted). The record reveals that African-Americans and whites vote differently in Michigan. Indeed, in Michigan 81% of African-Americans vote or lean Democrat, whereas only 41% of whites vote or lean Democrat. Religious Landscape Study, PEW RESEARCH CENTER, http://www.pewforum.org/religious-landscape-study/state/michigan/partyaffiliation/ (last visited July 31, 2018). And only 8% of African-Americans in Michigan vote or lean Republican, but 40% of whites in Michigan vote or lean Republican. Id.
Straight-party voting statistics further reveal the existence of racially polarized voting in Michigan. In communities where African-Americans are 40% or more of the voting age population, nearly 95% of straight-ticket votes are for the
16 Senate Factors 1, 3 and 4 are not relevant to this case. See Johnson I, 209 F. Supp. 3d at 951; see also Johnson III, 2018 WL 493184, at *15.
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Democratic Party. Dkt. No. 108-2, p. 25 (Pg. ID 2418). On the other hand, in communities where African-Americans are less than 40% of the voting age population, roughly 53% of straight-ticket votes are for the Republican Party. Id.
In asserting that voting is not racially polarized in Michigan, the Secretary relies on Anthony v. Michigan, 35 F. Supp. 2d 989, 1005–06 (E.D. Mich. 1999). But the Anthony court’s conclusion regarding racially polarized voting is consistent with this Court’s finding. Although that court only addressed voting preferences in Wayne County, from 1986 through 1996, the court observed “that the white electorate often had markedly different voting preferences than the black electorate[.]” Id. at 1004.
The Anthony court rejected a VRA claim, and the Secretary implies that this rejection has some bearing on this case. The Secretary is mistaken, however. Anthony involved a vote dilution claim, not a vote denial claim like that at issue here. And that court did not mention, let alone analyze, straight-ticket voting. Therefore, Plaintiffs have illustrated that racially polarized voting exists in Michigan.
b) Factor 5: Whether African-Americans Bear Effects of Discrimination in Certain Areas
The Plaintiffs offer substantial evidence that African-Americans bear the effects of discrimination in education, employment, health, and housing. And these
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effects make it more challenging for African-Americans to participate in the political process.
First, Plaintiffs have offered evidence of past discrimination.17 They highlight evidence of past discrimination in education through citing a case addressing a remedy to desegregate Detroit schools. See Milliken v. Bradley, 418 U.S. 717, 752– 53 (1974) (acknowledging segregation in Detroit schools, but rejecting lower courts’ inter-district remedy, as the record did not contain evidence about whether other districts had engaged in racially discriminatory acts).
According to the Secretary, the record lacks evidence of past state-sponsored discrimination in employment. She argues that, after World War II, “Michigan moved to aggressively protect African-Americans in the employment context by becoming the eighth state to create strong state agencies to protect minority citizens.” Dkt. No. 141, pp. 35–36 (Pg. ID 3451–52). Yet Plaintiffs offer evidence to the contrary. Specifically, they cite findings from The Color of Law, a book authored by Richard Rothstein, a Distinguished Fellow of the Economic Policy Institute and a Senior Fellow at the Thurgood Marshall Institute of the NAACP
17 The Court acknowledges Plaintiffs’ evidence of past state-sponsored discrimination, and therefore, the Court “need not and [will] not decide whether proof of such state-sponsored discrimination is required under the second part of this analysis.” Veasey v. Abbott, 830 F.3d 216, 265 (5th Cir. 2016) (en banc) (citing Frank v. Walker, 768 F.3d 744, 755 (7th Cir. 2014)). The Sixth Circuit, of course, has not already decided this issue for the Court. See, e.g., Ohio Democratic Party, 834 F.3d at 636–37.
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Legal Defense Fund. See Dkt. No. 140, pp. 31–32 (Pg. ID 3402–03). There, Rothstein observed that “[i]n 1948, for example, 45 percent of all job orders placed with the Michigan State Employment Service were for whites only,” and that “Michigan did not adopt a Fair Employment Practices law until 1955, and even then it was poorly enforced.” RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW OUR GOVERNMENT SEGREGATED AMERICA 168 (Liveright Publishing Corp., 2017). Thus, in contrast to the Secretary’s representation, there is evidence of official discrimination in employment in Michigan.
Plaintiffs additionally present evidence of state-sponsored discrimination in housing by, for example, citing to Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir. 1974). In that 1974 case, the Sixth Circuit concluded “that [Hamtramck] ha[d] violated the plaintiffs’ right to equal protection of the laws under the Fourteenth Amendment by engaging in activity intentionally designed to establish and add to segregation in housing patterns.” Id. at 1247. Hamtramck did this by demolishing impoverished, predominately African-American neighborhoods under the cover of urban renewal. See id. at 1239–40. What is more, the parties entered an agreement whereby Hamtramck would build housing units for these displaced persons. But as
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of 2015—more than fifty years after these mostly African-American residents had been displaced—some of the promised homes had still not been built.18
Plaintiffs also demonstrate how this past discrimination has lingered to today. Regarding education, Professor Ntiri notes that whites in Michigan are 7.3% more likely to have graduated from high school than are African-Americans in Michigan. Dkt. No. 108-5, p. 13 (Pg. ID 2522). The graduation rate for whites in Michigan, from 2011 to 2015, was 91.4%. Id. On the other hand, the graduation rate for African-Americans in Michigan during that same time period was only 84.1%. Id.
Further tying these statistics together, Ntiri found a positive relationship between the rate of illiteracy in a Michigan city and that city’s African-American population. Id. at pp. 13–14 (Pg. ID 2522–23). Additionally, the record reveals that past discrimination in employment is still present today. Metzger shows that unemployment rates for African-Americans in Michigan are twice as high as that for whites. Dkt. No. 108-2, pp. 11, 16 (Pg. ID 2404, 2409).
For instance, in 2010 African-Americans in Michigan had an unemployment rate of 23.9%, whereas whites had an unemployment rate of 10.6%. Id. at p. 16 (Pg. ID 2409). Although the unemployment rate has declined for both African-

18 See Ed White, Judge Keith Outraged by Incomplete Housing Discrimination

Case,

ASSOCIATED

PRESS

(Aug.

2,

2015),

https://www.freep.com/story/news/local/michigan/detroit/2015/08/02/judge-

damon-keith-housing-discrimination/31024517/.

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Americans and whites in Michigan since 2010, African-Americans still lag behind whites on this measure. Id. Indeed, African-Americans had an unemployment rate of 10.1% in 2016 and whites had an unemployment rate of 4.6% in that same year. Id.
Plaintiffs also use data compiled by Metzger to elucidate health disparities between African-Americans and whites in Michigan. For example, the infant mortality rate for African-Americans and whites has fluctuated between 2.3 and 2.9 to 1, respectively, from 2010 to 2015. Id. at pp. 18–19 (Pg. ID 2411–12). Interpreting United States Census Bureau data, Metzger wrote that “African Americans in Michigan, regardless of age, are more likely to report a disability than are White, non-Hispanics.” Id. at pp. 19–20 (Pg. ID 2412–13).
Finally, African-Americans continue to bear the effects of discrimination in housing. African-Americans in Michigan are far less likely to own a home than are whites. In 2016, for instance, 76.8% of whites in Michigan owned a home; only 40.8% of African-Americans owned a home that year, however. Id. at p. 23 (Pg. ID 2416). The record contains evidence of segregation in Michigan. Notably, a 2017 24/7 Wall Street article labeled the Detroit metropolitan area as the most segregated metropolitan area in the country. Dkt. No. 137-8, pp. 19–21 (Pg. ID 3344–46).
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c) Factor 6: Whether Political Campaigns have been characterized by Overt or Subtle Racial Appeals
This Court has previously noted, and will conclude here again, that political campaigns in Michigan have been characterized by overt or subtle racial appeals. See Johnson I, 209 F. Supp. 3d at 952; see also Johnson III, 2018 WL 493184, at *15. These racial appeals include comments made in 2012 by Ron Weiser, who was then finance chairman of the Republican National Committee and who is now the Michigan Republican Party Chair. See Dkt. No. 1-17; see also Dkt. No. 146, p. 6 (Pg. ID 4384). Weiser, as noted above, was influential in assisting Senator Knollenberg with obtaining votes for PA 268.
In a Tea Party meeting, Weiser said that Republicans had a favorable outlook for the 2012 presidential election because, in Detroit, “[t]here’s no machine to go to the pool halls and the barbershops and put those people on buses, and then bus them from precinct to precinct where they vote multiple times.” Dkt. No. 1-17, p. 4 (Pg. ID 311). He continued, declaring that “there’s no machine to get ‘em to stop playing pool and drinking beer in the pool hall,” and saying that, “[b]ut if you’re not from Detroit, the places where those pool halls and barbershops are, you’re not going to be going at 6:30 in November. Not without a side arm.” Id.
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Additionally, former Republican Senator John Pappageorge was quoted in the Detroit Free Press in 2004 as stating that “if we do not suppress the Detroit vote, we’re going to have a tough time in this election.” Dkt. No. 1-18, p. 2 (Pg. ID 313).
The Secretary does not challenge the accuracy of these statements. Instead, she contends that these statements, occurring within a twelve year period, are insufficient to show a pattern of racial appeals. Yet the Court simply highlights these statements to offer examples of the rhetoric heard during campaigns and, along with the comments detailed in Johnson I and Johnson III, the Court finds that elections in Michigan have been characterized by racial appeals.
d) Factor 7: African-Americans’ Election to Public Office in Michigan
This factor, as the Court has noted twice before, weighs in favor of neither party. Some evidence favors the Secretary. Former President Barack Obama carried Michigan in both 2008 and 2012. African-Americans in Michigan have been elected to local, partisan offices and to judicial seats, like the Michigan Supreme Court. This fact loses some persuasive force, however, as incumbent candidates in judicial elections are designated as an incumbent on a ballot. See Mich. CONST. art. 6, § 24 (West, Westlaw through Nov. 2016 amendments). That designation advantages incumbents over new candidates.
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But this consideration is neutral because in its 181-year history, Michigan has seen only one African-American hold a statewide, partisan office: Richard Austin was Secretary of State from 1971 to 1994.19

e) Factor 8: Whether There is a Significant Lack of Responsiveness on the Part of Elected Officials
This consideration favors the Plaintiffs. Elected officials displayed a significant lack of responsiveness to the needs of minority communities in severing the tie-bar of HB 4724 to PA 268, where numerous elections officials predicted devastatingly long lines and wait times resulting from the implementation of PA 268. See Veasey, 830 F.3d at 263 (ruling that legislators demonstrated a significant lack of responsiveness to minority needs when they knew that the enacted legislation would have a disparate impact on minorities and rejected without explanation other proposed laws that would have ameliorated that disparate impact). The Court previously explained that elected officials showed a significant lack of responsiveness to minority needs by not calling a special election for the 13th Congressional District—a predominately African-American and Democratic-

19

History & Culture, MICH. DEP’T OF TRANSP.,

https://www.michigan.gov/mdot/0,4616,7-151-9623_11154-126425--,00.html (last

visited July 31, 2018).

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leaning district. See Johnson III, 2018 WL 493184, at *16. The decision to not call a special election meant that this congressional district would go unrepresented in Congress for eleven months.
The Secretary resists this conclusion by noting that a court in this district denied a preliminary injunction requesting that Governor Snyder hold a special election for this congressional seat. See Rhodes v. Snyder, 302 F. Supp. 3d 905, 906 (E.D. Mich. 2018). In Rhodes, the court concluded that the plaintiffs were not likely to succeed on their claim that Governor Snyder violated the Equal Protection Clause by not ordering a special election. Id. at 914.
The Secretary’s reliance on Rhodes is unavailing. The Equal Protection Clause is not coterminous with the examination of elected officials’ responsiveness to the needs of minority communities as set forth in the Senate Factors. This responsiveness inquiry, of course, sets a much lower bar. Therefore, the Court again finds that the decision to leave a predominately African-American area without congressional representation for nearly one year manifests a significant lack of responsiveness to the needs of minority communities.
The Secretary rightly notes that elected officials have sometimes responded to the needs of minority communities in Michigan through, for example, successfully managing Detroit’s bankruptcy. Dkt. No. 141, p. 41 (Pg. ID 3457).
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That fact is not enough for the Court to balance this factor in her favor, however. Accordingly, this Court again determines that this consideration helps the Plaintiffs.
f) Factor 9: Policy Underlying PA 268 is Tenuous
The policy underlying PA 268 is tenuous, as the Plaintiffs contend. “[B]ear[ing] on the fairness of [a procedure’s] impact,” in this review, is whether “the procedure markedly departs from past practices or from practices elsewhere in the jurisdiction.” S. Rep. No. 97–417, p. 29 n.117. PA 268 is a marked departure from past practices in Michigan as straight-party voting has been available in Michigan for 127 years. Additionally, the Secretary observes that “[straight-ticket voting] is very popular in urban and rural communities, cities and suburbs, [and] communities with high-and-low percentage [sic] of African-Americans.” Dkt. No. 141, p. 27 (Pg. ID 3443). Indeed, approximately half of Michigan residents utilized the straight-ticket option in the 2016 election. Dkt. No. 108-2, p. 9 (Pg. ID 2402).
The stated policy motivating PA 268 is tenuous, given the aforementioned popularity, Michigan residents’ use of straight-party voting for 127-years, and residents’ repeal of 1964 and 2001 laws eliminating straight-ticket voting. The stated goals of PA 268—developing a more informed electorate, minimizing confusion in completing ballots, and encouraging completion of the nonpartisan section of the ballot—are also tenuous.
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To be sure, these interests are legitimate. But they are only loosely tethered to the purpose of PA 268. Here, there is minimal evidence that forcing the electorate to vote for each candidate individually will make it more informed about candidates, especially considering the high number of contests and proposals on Michigan ballots.
The interest in limiting confusion is likewise tenuously linked to PA 268; Michigan residents have been voting a straight-ticket ballot for many years and do so at high rates. And the voter fatigue theory shows that encouraging voting in nonpartisan races is also a tenuous objective. Accordingly, the Court concludes that PA 268 is only tenuously related to the legislative interests supporting its enactment.
3. Totality of the Circumstances
Examining the totality of the circumstances, the Court finds that the Plaintiffs have demonstrated by a preponderance of the evidence that the disparate impact PA 268 imposes on African-Americans is linked to social and historical conditions of discrimination against African-Americans. The record reveals that PA 268 will cause drastically longer lines and wait times at polling precincts; that AfricanAmericans vote a straight-ticket far more than other demographics; and that longer wait times will deter voters from attending the polls.
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As illustrated by the Court’s discussion of the Senate Factors, the ramifications of PA 268 work in concert with social and historical conditions of discrimination to disparately impact African-Americans. For example, PA 268 generates dramatically longer lines and wait times; and therefore, PA 268 deters voters. These ramifications disparately impact African-Americans because they vote a straight-ticket at significantly higher rates than whites. And social and historical housing discrimination will only intensify the negative consequences of PA 268. Indeed, many African-Americans in Michigan reside, and thus vote, in the same precincts. Thus, precincts with high percentages of voting age AfricanAmericans will be hit the hardest by the elimination of straight-ticket voting. In this way, PA 268 works to abridge or deny African-Americans’ right to vote.
Similarly, historical discrimination in education has contributed to AfricanAmericans’ lower literacy rates as compared to whites. These lower levels of literacy will cause African-Americans to experience greater confusion with the PA 268 ballot; a ballot that will now require them to vote individually for at least eighteen additional partisan offices, beyond the numerous nonpartisan races and proposals. Dkt. No. 108-5, p. 18 (Pg. ID 2527); Dkt. No. 1-15, p. 9 (Pg. ID 288). In turn, lower literacy will make African-Americans more likely than whites to take a longer time voting or to abandon their ballots prior to completion.
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Elections officials’ significant lack of responsiveness to African-Americans’ concerns is also intertwined with PA 268. PA 268 will deter African-Americans from going to the polls, giving them even less opportunity to encourage their elected officials to respond to their needs.
The evidence detailed above demonstrates that PA 268 disparately impacts African-Americans by abridging or denying their right to vote. In addition, the impact of PA 268 is linked to and exacerbated by social and historical conditions of discrimination, including discrimination in employment, housing, and education. Consequently, the Court holds that PA 268 violates Section 2 of the VRA.
Lastly, the remedy for this violation of Section 2 of the VRA is a permanent injunction. PA 268 would cause Plaintiffs to suffer irreparable harm, as the harm Plaintiffs would suffer under PA 268 “is not fully compensable by monetary damages.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007) (internal quotation marks omitted) (quoting Overstreet v. Lexington–Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002)). And, as noted in the Court’s discussion regarding Counts I and II, the Court finds that an injunction of PA 268 would not cause substantial harm to others. An injunction would also serve the public interest by ensuring that a law does not abridge or deny African-Americans’ ability to participate in the political process. As a result, the
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above-detailed violation of Section 2 of the VRA justifies a permanent injunction of PA 268.

V. Conclusion

In light of the foregoing, the Court determines that PA 268 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. PA 268, then, violates both

the Equal Protection Clause and the VRA. The Court will accordingly GRANT

Plaintiffs’ request for a permanent injunction of PA 268.

IT IS SO ORDERED.

Dated: August 9, 2018

/s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on August 9, 2018, by electronic and/or ordinary mail. /s/ Teresa McGovern Deputy Clerk
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 Case 2:16-cv-11844-GAD-MKM ECF No. 160 filed 08/23/18 PageID.4765 Page 1 of 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, MARY LANSDOWN, DION WILLIAMS, and COMMON CAUSE,

Case No. 16-cv-11844

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN

v.
RUTH JOHNSON, in her official capacity as Michigan Secretary of State,

UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant. /

OPINION AND ORDER DENYING EMERGENCY MOTION FOR STAY PENDING APPEAL [156]

I. Introduction

This case involves the constitutionality and legality of 2015 Public Act 268

(“PA 268”) in Michigan, a law which eliminated straight-ticket voting in that state.

The Plaintiffs are two African-American individuals, Mary Lansdown and Dion

Williams, and two organizations, Michigan State A. Philip Randolph Institute

(“APRI”) and Common Cause. The individual Plaintiffs vote in Michigan and the

entity Plaintiffs operate in Michigan. The Plaintiffs have asserted three claims

against Michigan’s Secretary of State, Ruth Johnson (the “Secretary”). They allege

that PA 268 unduly burdens voting rights under the Equal Protection Clause (Count

I), illustrates intentional discrimination against African-Americans in violation of

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the Equal Protection Clause (Count II), and violates Section 2 of the Voting Rights Act (“VRA”), (Count III).
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.1 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.
The Secretary disagreed with this ruling, as indicated by her August 14, 2018 emergency motion for a stay of the permanent injunction pending appeal. Dkt. No. 156. The Plaintiffs responded to the motion on August 20, 2018. Dkt. No. 159.
1 The Court amended its Opinion and Order on August 9, 2018, simply adding a table of contents. Mich. State A. Philip Randolph Inst. v. Johnson, Case No. 16-cv11844, --- F. Supp. 3d ----, 2018 WL 3769326 (E.D. Mich. Aug. 9, 2018) (“Johnson IV”).
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Presently before the Court is the Secretary’s Emergency Motion for a Stay Pending Appeal of the Court’s Opinion and Order Permanently Enjoining PA 268 [156]. The Court has not held a hearing on the motion and the motion is sufficiently briefed. For the reasons outlined below, the Court will DENY the Secretary’s Emergency Motion for a Stay of the Permanent Injunction Pending Appeal [156]. II. Background
The Court will presume familiarity with the facts in this case. But recitation of the relevant procedural history is necessary to develop the context in which the Court will decide the pending motion. On July 22, 2016, the Court granted the Plaintiffs’ motion for a preliminary injunction. Mich. State A. Philip Randolph Inst. v. Johnson, 209 F. Supp. 3d 935 (E.D. Mich. 2016) (“Johnson I”). And on August 15, 2016, this Court denied the Secretary’s motion to stay the preliminary injunction pending appeal. Mich. State A. Philip Randolph Inst. v. Johnson, Case No. 16-cv11844, 2016 WL 4267828 (E.D. Mich. Aug. 15, 2016). The Sixth Circuit, on August 17, 2016, denied the Secretary’s motion to stay the preliminary injunction pending appeal, and thus, affirmed this Court’s grant of Plaintiffs’ request for a preliminary injunction. Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656 (6th Cir. 2016) (“Johnson II”).
The Court on January 19, 2018 denied the Secretary’s motion for summary judgment. See Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844,
3

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2018 WL 493184, at *3–4 (E.D. Mich. Jan. 19, 2018) (“Johnson III”). Following trial, the Court held that the Plaintiffs had proven all three of their claims by a preponderance of the evidence. Johnson IV, 2018 WL 3769326, at *1. The Court, therefore, permanently enjoined PA 268. III. Legal Standard
The Secretary’s motion for a stay pending appeal requires that the Court evaluate “(1) the likelihood that the party seeking the stay will prevail on the merits; (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.” Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (citing Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006)). “These factors are not prerequisites that must be met,” the Sixth Circuit has instructed. Serv. Emps. Intern. Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (internal quotation marks omitted) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). Rather, they “are interrelated considerations that must be balanced together.” Id. (internal quotation marks omitted) (quoting Griepentrog, 945 F.2d at 153).
The elements on a motion for a stay pending appeal and a motion for a preliminary injunction are the same; the balancing of those elements is different, however. United States v. Omega Sols., LLC, 889 F. Supp. 2d 945, 948 (E.D. Mich.
4

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2012) (citing Griepentrog, 945 F.2d at 153). “[A] movant seeking a stay pending appeal will have a greater difficulty in demonstrating a likelihood of success on the merits,” given the procedural posture on a motion for a stay pending appeal. Id. (citing Griepentrog, 945 F.2d at 153). Because “[a] motion for stay pending appeal is made after significant factual development and after the court has fully considered the merits,” the moving party “must demonstrate that ‘there is a likelihood of reversal.’ ” Id. (quoting Griepentrog, 945 F.2d at 153). This demanding standard is consistent with the belief that “there is a reduced probability of error, at least with respect to a court’s findings of fact, because the district court had the benefit of a complete record[.]” Id. (internal quotation marks omitted) (quoting Griepentrog, 945 F.2d at 153). The Secretary, as the moving party, must meet this high burden. See id. IV. Discussion
The Secretary requests that the Court stay its permanent injunction on PA 268 pending appeal. Dkt. No. 156. As the Court concludes that the Secretary has not met her burden, the Court will decline the Secretary’s invitation to stay the permanent injunction pending appeal. The Court will address the four factors on this motion in turn, and later the Secretary’s contention that the Plaintiffs lack standing.
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A. Success on the Merits The Court concluded in its trial decision that the Plaintiffs had proven all three of their claims, and that success on any one claim demanded that the Court permanently enjoin PA 268. The Secretary’s arguments here only reinforce that ruling. Thus, the Court will hold that the Secretary is not likely to succeed on the merits on all of the claims in this action.
1. Anderson-Burdick Claim (Count I) In requesting a stay, the Secretary raises four principal arguments regarding Count I. First, she maintains that the Court applied the wrong legal standard in assessing whether the State’s interests supporting PA 268 justify the burden that PA 268 would impose on voters. See Burdick v. Takushi, 504 U.S. 428 (1992); see also Anderson v. Celebrezze, 460 U.S. 780 (1983). In particular, she contends that the relevant burden is the burden imposed on all Michigan voters, and that the Court wrongly determined that the burden at issue here is that faced by African-American voters. But she cites no controlling authority for this premise. The only opinion she has referenced in support is a three Justice concurrence which is not a controlling or even plurality Supreme Court opinion. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205–06 (2008) (Scalia, J., concurring in judgment) (noting that “[Supreme Court] precedents refute the view that individual impacts are relevant to
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determining the severity of the burden it imposes,” at least when analyzing “generally applicable, nondiscriminatory voting regulation[s].”). As three other Justices delivered a different rationale in the lead opinion in Crawford, the Secretary’s proposed standard does not govern the Court’s inquiry in this action.
Tellingly, the Secretary overlooks the wealth of Sixth Circuit precedent distilling the appropriate standard under the Anderson-Burdick framework. The Court followed that precedent in its trial opinion, and the Court’s application of that case law establishes that the Secretary is not likely to prevail on the merits. In Johnson II, for example, the Sixth Circuit defined the burden as the impact on all voters, especially considering the disproportionate impact on African-American voters. 833 F.3d at 666. The Sixth Circuit was even more explicit in Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (citing Crawford, 553 U.S. at 190). There, it held that as a statute “results, at most, in a minimal disparate burden on some African Americans’ right to vote, and because [Ohio’s] legitimate interests are ‘sufficiently weighty’ to justify this minimal burden, [that statute] easily survives plaintiffs’ equal protection challenge.” Id. (quoting Crawford, 553 U.S. at 190). The Court accordingly finds that precedent permits the Court’s weighing of the burden that PA 268 would impose on African-American voters in Michigan. Therefore, the Secretary has not demonstrated that the Court applied the wrong standard in its Anderson-Burdick analysis.
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Additionally, the Court’s balancing of the relevant burden against the State’s supporting interests was consistent with Sixth Circuit case law. The Court found in its trial decision that PA 268 will significantly increase wait times and generate much longer lines for all Michigan voters, and that these effects will disproportionately impact African-American voters. The Court also found that these effects will deter African-Americans from voting on Election Day. As that finding correctly applies the above-described precedent, the Secretary is unlikely to prevail on Plaintiffs’ equal protection claim under the Anderson-Burdick framework.
Second, the Secretary presses an argument that this Court—and the Sixth Circuit—has repeatedly rejected: that PA 268 would not burden voters because voters may still vote select candidates of their choice. See, e.g., Johnson II, 833 F.3d at 663 (“In its motion for a stay pending appeal, the Secretary insists that PA 268 impacts only the manner of voting—not the right to vote. It is clear, however, that how a state chooses to regulate the manner that a person must cast a ballot undoubtedly impacts the individual right.” (internal quotation marks and citations omitted))).
Next, according to the Secretary, she is likely to prevail on the merits because the Court determined that PA 268 will increase wait times without finding facts necessary for that conclusion. Dkt. No. 156, p. 21 (Pg. ID 4731). The Secretary maintains that the Court’s factual findings were inadequate because the trial decision
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lacks details regarding the current wait times throughout Michigan, the specific increase in voting wait times that PA 268 would generate, and the line between constitutional and unconstitutional wait times. Id. The Court is unconvinced.
The Secretary’s allegations misunderstand the nature of the inquiry here; the relevant inquiry asks whether the Plaintiffs have demonstrated that the State’s interests supporting PA 268 are not sufficiently weighty to justify the burden that PA 268 would impose on voters, and particularly on African-Americans. The Court, therefore, need not have defined precisely every fact related to both the wait times and longer lines caused by PA 268, and the corresponding voter deterrence. The Court was only charged with determining whether the Plaintiffs had met their burden.
Yet the Court engaged in the fact finding which the Secretary views as necessary. For current wait times, for example, the trial opinion reflects that voters in Flint waited on average fifty-two minutes to vote in the 2016 election. See Johnson IV, 2018 WL 3769326, at *9. Evidence regarding the 2012 election, although not current, still elucidates current voting conditions in Michigan, especially considering that the Secretary fails to identify any meaningful difference between voting circumstances in 2012 as compared to today. And, as the Court noted numerous times in its trial opinion, Michigan in 2012 had the sixth longest voting wait time among the fifty states. See id.
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The Court also credited evidence of estimates regarding the specific increase in voting wait times that PA 268 would generate for Michigan voters. The Court accepted elections clerks’ testimony at legislative hearings that Michigan voters ordinarily waited about twenty-two minutes to vote and that PA 268 could double this wait. See id. at *19. The Court noted that Christopher Thomas, who was the Director of Elections in Michigan for thirty-six years, said that it would take a straight-party voter three additional minutes to complete a ballot under PA 268, as compared to the straight-ticket ballot currently in use. See id. at *8. Expert evidence from Theodore Allen, an associate professor of Industrial Engineering at Ohio State University, buttresses this lay evidence. Allen conducted a simulation and concluded that eliminating straight-ticket voting would increase wait times in Michigan by at least 25% for each voter who submitted a straight-party vote. Dkt. No. 108-4, p. 10 (Pg. ID 2497). Because this evidence demonstrated by a preponderance of the evidence that PA 268 would drastically increase wait times and create much longer lines, the Court need not have stated the increase in time caused by PA 268 down to the exact second.
This precision principle is equally applicable to the Secretary’s assertion that the Court failed to establish a bright-line between constitutional and unconstitutional wait times. Plaintiffs presented evidence showing that PA 268 would thrust wait times and voter lines past the constitutional and statutory boundaries, wherever those
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boundaries may specifically lie. Development of a bright-line rule here would not only manifest a lack of appreciation for the complex issues in this case, but it would also violate the spirit of the balancing test under the flexible, Anderson-Burdick framework.
Fourth, and finally, the Secretary argues that the Court did not find that longer lines would specifically deter African-Americans. Dkt. No. 156, p. 22 (Pg. ID 4732). This allegation is also unfounded. The Court held that PA 268 would create disproportionately longer wait times and voting lines for African-American voters, given African-Americans’ high straight-ticket voting rates and relatively low literacy rates. The Court further found that long wait times and voting lines deter voters. Because the negative effects of PA 268 are most pronounced for AfricanAmerican voters, it follows that PA 268 will disparately deter African-Americans from voting.
The Secretary unpersuasively claims that these interrelated conclusions should come undone because the Court relied on conjuncture in its findings regarding literacy. This argument, too, lacks merit. Indeed, the Court credited the testimony and report of Plaintiffs’ expert on literacy, Wayne State University Professor Daphne Ntiri. Dkt. No. 108-5, pp. 4–5 (Pg. ID 2513–14). She cited statistics indicating that in Michigan African-Americans have lower rates of education attainment than whites. Id. Ntiri’s analysis regarding what people with
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lower literacy can and cannot read convinced the Court that many of these people have trouble navigating Michigan’s extremely long ballots, and that they would struggle even more if straight-party voting were no longer available to them. As a result, the Court gave proper weight to the testimony presented regarding literacy. Based on the above, the Court holds that the Secretary is unlikely to succeed on Plaintiffs’ Anderson-Burdick claim under the Equal Protection Clause.
B. Intentional Discrimination (Count II) The Secretary is also not likely to prevail on Plaintiffs’ equal protection claim regarding intentional discrimination. 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. Dkt. No. 156, p. 19 (Pg. ID 4729). 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. Dkt. No. 137-4, p. 6 (Pg. ID 3270). Given her integral role in the legislative process, the Court rightly examined her statements. The Court previously held that the Michigan Legislature, as an avenue to win elections, intentionally discriminated against African-Americans through
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suppressing their predominately Democratic Party votes. Johnson IV, 2018 WL 3769326, at *30. The Secretary responds that “a finding of politically-based discrimination is a defense to, and defeats, a racial discrimination finding.” Dkt. No. 156, p. 19 (Pg. ID 4729). In support, she relies on cases addressing whether congressional redistricting was unconstitutional racial gerrymandering. See Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017); Easley v. Cromartie, 532 U.S. 234, 243 (2001); Hunt v. Cromartie, 526 U.S. 541, 551–52 (1999).
Yet gerrymandering cases are subject to a different legal standard than voting rights cases. Plaintiffs in gerrymandering cases must show “that race (not politics) was the ‘predominant consideration in deciding to place a significant number of voters within or without a particular district.’ ” Cooper, 137 S. Ct. at 1479 (quoting Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015)). “That entails demonstrating that the legislature ‘subordinated’ other factors— compactness, respect for political subdivisions, partisan advantage, what have you— to ‘racial considerations.’ ” Id. at 1463–64 (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). Racial and political motivations are thus mutually exclusive in the gerrymandering context. See id.
Racial and political motivations coexist in the voting rights context, however. Plaintiffs alleging intentional discrimination based on voting rights legislation “need not show that discriminatory purpose was the ‘sole[ ]’ or even a ‘primary’ motive
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for the legislation, just that it was ‘a motivating factor.’ ” N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). Thus, the Secretary is mistaken when she asserts that, in this litigation, political discrimination is a defense to racial discrimination. See id. at 222–23; see also One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 925 (W.D. Wis. 2016). The Secretary has therefore failed to show that she is likely to succeed on Plaintiffs’ intentional discrimination claim.
C. Section 2 of the VRA (Count III) Likewise, she is not likely to prevail on Plaintiffs’ Section 2 VRA claim. 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 AfricanAmerican voters had extraordinarily high straight-ticket voting rates relative to those of Michigan as a whole. Dkt. No. 108-2, pp. 9–10 (Pg. ID 2402–03). 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 AfricanAmericans from voting. See Johnson IV, 2018 WL 3769326, at *14–17.
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The Secretary acknowledges that in 2012 voters in forty-four other states generally waited less time to vote than Michigan residents did. Dkt. No. 156, p. 27 (Pg. ID 4737). She then revealingly contends that fact “conclusively establishes that there is no link between [straight-party voting] and wait times because Michigan has much longer wait times than states without [straight-party voting].” Id. She continues that “Michigan’s relatively long wait times are thus necessarily attributable to reasons other than SPV.” Id.
This point only bolsters the Court’s findings regarding African-Americans’ access to the polls post-PA 268. Indeed, the record reflects that straight-ticket voting saves at least three minutes at the polls for every voter who uses that option, and 1.5 to 2.5 million voters submitted a straight-party ballot in the 2016 election. See Johnson IV, 2018 WL 3769326, at *8. Straight-ticket voting thus substantially decreases the amount of time that Michigan voters spend at the polls. In spite of this, Michigan still has the sixth longest wait time in the nation. PA 268 will only aggravate these troubling voting conditions. Additionally, the Court credited evidence showing that significantly longer wait times and drastically longer lines deter voters. Id. at *33. Because these effects would disparately impact AfricanAmericans, PA 268 would deny or abridge African-Americans’ right to vote. The
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Secretary, therefore, is wrong to argue that she will succeed on Plaintiffs’ Section 2 VRA claim because the Plaintiffs cannot prove disparate impact.2
In sum, Plaintiffs assert three claims, and the Court has determined that the Secretary is not likely to prevail on any one of these claims. As the Secretary must succeed on all three of Plaintiffs’ claims to avoid a permanent injunction on PA 268, the merits prong heavily weighs in Plaintiffs’ favor.
D. Irreparable Harm The balance of harms further suggests that the Secretary is not entitled to a stay. True, two one-Justice opinions support the Secretary’s position that a stay will irreparably harm the State. See Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (noting that “[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.” (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). But the State’s form of irreparable harm is lesser than that affecting Michigan voters as a result of PA 268. Courts presume irreparable injury where constitutional rights are imperiled or abridged. See Obama for America v. Husted, 697 F.3d 423,
2 The Court recognizes that a showing of disparate impact, standing alone, is insufficient to prove a violation of Section 2 of the VRA. See Johnson IV, 2018 WL 3769326, at *33–38. The Secretary, however, does not seriously challenge any other aspect of the Court’s resolution of Plaintiffs’ Section 2 VRA claim. See Dkt. No. 156, p. 26–27 (Pg. ID 26–27).
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436 (6th Cir. 2012) (citing ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003)). And “[a] restriction on the fundamental right to vote therefore constitutes irreparable injury.” Id. (citing Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986)). The irreparable injury to Michigan residents here is not abstract, as is the State’s alleged irreparable injury. 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.
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. See Dkt. No. 156, p. 5 (Pg. ID 4715). 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
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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”).
Based on these considerations, the balance of harms weighs in Plaintiffs’ favor.
E. Standing The Secretary vigorously argues that the Plaintiffs lack standing to assert any one of their claims. The Plaintiffs include both individuals and organizations. For an individual plaintiff to show standing, “(1) ‘he must demonstrate injury in fact—a harm that is both concrete and actual or imminent, not conjectural or hypothetical’; (2) ‘he must establish causation—a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant’; and (3) ‘he must demonstrate redressability—a substantial likelihood that the requested relief will remedy the alleged injury in fact.’ ” Davis v. Detroit Pub. Sch. Cmty. Dist., --- F.3d ----, 2018 WL 3763429, at *5 (6th Cir. Aug. 9, 2018) (quoting Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)). On the other hand, an organization can sue on behalf of its members “when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim requested nor the relief requested requires the
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participation of individual members in the lawsuit.” Waskul v. Washtenaw Cty. Cmty. Mental Health, --- F.3d ----, 2018 WL 3849275, at *2 (6th Cir. Aug. 14, 2018) (internal quotation marks omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000)).
The Court initially rejected the Secretary’s standing arguments when it resolved the Plaintiffs’ motion for a preliminary injunction. Johnson I, 209 F. Supp. 3d at 944–45. In her summary judgment motion, the Secretary again contested Plaintiffs’ right to bring this action. See Dkt. No. 102, pp. 19–27 (Pg. ID 1776–84). The Court disagreed, concluding that the law of the case doctrine established that the African-American Plaintiffs and organizational Plaintiffs had standing. See Johnson III, 2018 WL 493184, at *3–4. But the Court explained that it had not previously addressed standing as to Erin Comartin, a white Michigan resident and initially a named Plaintiff. Id. Based on the evidence presented at summary judgment, the Court held that Comartin lacked standing because she could not show that she would suffer an injury in fact stemming from PA 268. See id. (rejecting Comartin’s argument that harm to her interest in democracy could show injury in fact here).
Citing the same evidence and making the same arguments as in her summary judgment motion, the Secretary maintains that the remaining Plaintiffs lack standing. The Court will again disagree, but this time on the merits.
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Plaintiff Mary Lansdown is an African-American and a registered voter in Flint. Dkt. No. 1, p. 3 (Pg. ID 3). She can vote absentee under an exception for voters over the age of sixty. See MICH. COMP. LAWS § 168.758(d). According to the Secretary, Lansdown lacks standing because she has not voted in person in twenty-three years, and therefore, cannot show that she will suffer injury in fact through the implementation of PA 268. Dkt. No. 156, pp. 28–29 (Pg. ID 4738–39). Lansdown can still attend the polls on Election Day, although she can vote absentee and has availed herself of that privilege. Because she can still vote in person, PA 268 threatens her rights under the Equal Protection Clause and Section 2 of the VRA. Accordingly, she has standing to challenge PA 268.
Plaintiff Williams is also an African-American, is registered to vote in Detroit, and is not eligible to vote absentee. Dkt. No. 1, p. 4 (Pg. ID 4). He “[a]lmost always” votes a straight-ticket in general elections. Dkt. No. 102-14, p. 5 (Pg. ID 2117). The Secretary claims that he lacks standing because he purportedly testified that nothing would stop him from voting on Election Day. Dkt. No. 156, pp. 28–29 (Pg. ID 4738–39). Williams did not make that representation during his deposition, however. Dkt. No. 102-14, pp. 6–7 (Pg. ID 2117–18). Instead, he said that when he voted in the 2016 general election, “because the lines were extremely long,” it took him “about an hour, maybe an hour and a half” to vote. Id. at p. 5 (Pg. ID 2117). This testimony hardly suggests that Williams would vote regardless of how long it
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would take him to exercise that right. Consequently, the Secretary has not demonstrated that Williams lacks standing to raise the claims asserted herein.
As for the institutional Plaintiffs, the Secretary alleges that these Plaintiffs cannot challenge PA 268 because they cannot show that their members would suffer an injury in fact. The Secretary, in particular, contends that the organizational Plaintiffs have not demonstrated that they have African-American members who vote in jurisdictions with high straight-party voting rates. Dkt. No. 156, p. 25 (Pg. ID 4735). The Court finds that the institutional Plaintiffs have made this showing.
An affidavit from the president of APRI establishes that it has numerous African-American members who vote in Michigan and use the straight-party option. See Dkt. No. 108-6, pp. 2–3 (Pg. ID 2533–34) (noting that APRI operates throughout Michigan and that “[its] members are predominantly African-American and many of them use the straight party voting device.”).3 Likewise, a senior counsel at Common Cause submitted an affidavit providing that the organization has as members African-Americans who vote in Michigan and vote a straight-party. Dkt. No. 108-7, p. 2 (Pg. ID 2536) (observing that “Common Cause has thousands of
3 The Court struck a separate section of the affidavit by the APRI president, as that section included conclusory statements regarding voter confusion in violation Federal Rule of Civil Procedure 56(c)(1)(4). See Dkt. No. 123, pp. 4–6 (Pg. ID 2777–79).
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members and supporters in Michigan, including African-Americans who use the

straight party voting device”).4

In light of the foregoing, the Plaintiffs have standing to assert their claims

under both the Equal Protection Clause and Section 2 of the VRA.

V. Conclusion

After trial in this case, the Court issued a 103 page opinion in which it granted

the Plaintiffs’ request for a permanent injunction on PA 268, finding that the

Plaintiffs had met their burden on all three of their claims. See Johnson IV, 2018

WL 3769326. The Secretary then filed an emergency motion for a stay of the

Court’s permanent injunction pending appeal. Dkt. No. 156. Based on the above

analysis, the Court will DENY the Secretary’s Emergency Motion for a Stay of the

Permanent Injunction Pending Appeal [156].

IT IS SO ORDERED.

Dated: August 23, 2018

/s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge

4 Similarly, the Court struck a separate paragraph of this affidavit because that paragraph included conclusory statements regarding voter confusion. Id. at pp. 3–4 (Pg. ID 2776–77).
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CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on
August 23, 2018, by electronic and/or ordinary mail. /s/ Tanya Bankston Deputy Clerk
23

 
 Case 2:16-cv-11C8a4s4e-:G1A8D-1-M91K0M DEoCcFuNmoe.n1t:6222-1filedF0il9e/d0:50/198/05/P2a0g1e8ID.4P8a3g5e: 1Page 1 of 47(1 of 47)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 05, 2018
Ms. Denise C. Barton Ms. Ann M. Sherman Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Mr. Mark C. Brewer 17000 W. Ten Mile Road Second Floor Southfield, MI 48075-0000
Ms. Mary Ellen Gurewitz Sachs Waldman 2211 E. Jefferson Street, Suite 200 Detroit, MI 48226
Re: Case No. 18-1910, MI State A. Philip Rand Inst., et al v. Ruth Johnson Originating Case No. : 2:16-cv-11844
Dear Counsel,
The Court issued the enclosed signed order today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Cathryn Lovely Opinions Deputy

Case 2:16-cv-11C8a4s4e-:G1A8D-1-M91K0M DEoCcFuNmoe.n1t:6222-2filedF0il9e/d0:50/198/05/P2a0g1e8ID.4P8a3g6e: 1Page 2 of 47(2 of 47)

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0461n.06

No. 18-1910

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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.

)

FILED
September 5, 2018
DEBORAH S. HUNT, Clerk
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 straightticket 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.

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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson 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
2

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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson 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
1 Straight Ticket Voting States, Nat’l Conf. St. Legislatures (Jan. 8, 2016), http://www.ncsl.org/research/elections-and-campaigns/straight-ticket-voting.aspx.
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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
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson 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-cv11844, 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, No. 16-cv-11844, 2018 WL 4024895, at *4 (E.D. Mich. Aug. 23, 2018). Allen found no such thing.
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As the district court properly recognized elsewhere in its own opinion, Allen’s 25% figure concerns voting time, not wait time. And critically, there is no necessary connection between these two values. If there are a number of open voting booths, for instance, then an increase in voting time would not affect wait time.
At best, the district court referenced static wait-time figures; but these figures are insufficient for a variety of reasons. Most obviously, the fact that there is a wait time at a polling station does not answer what the cause of that wait is. And without knowing that, one cannot conclude that increased voting times will translate to increased wait time. As discussed below, all the data used to predict hypothetical wait times and their increase without straight-ticket voting derives from simulations based on observations (made by volunteers apparently recruited and trained by plaintiffs or their associates) at thirty-one Michigan precincts on Election Day 2016. Allen admits in his report that he “adjusted” the statistics—using a “simulation” about which we know nothing—due to recording errors by the volunteers.
Beyond these obvious statistical shortcomings, the district court took almost no notice of the Michigan voting process. Once voters are checked in as eligible voters and given a ballot, they may proceed to one of a number of booths to mark their ballots. There is not a single file of voters queuing through a single location, as was, for example, the case in many states that used mechanical voting machines, had only one machine per precinct, and thus permitted only one voter at a time to vote.2
2 Most of the selected precincts are noted as using “Paper” ballots as just described. A few precincts, especially the three Detroit precincts, are noted as “Electronic.” This does not seem to have affected the progression from registration table to a voting booth in any way, though it is not clear if each booth had a dedicated device, or if the voter was issued a device. In any event, there is no indication from any of the parties, observers, or reports, that
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The thirty-one precincts included in the record had between three and twenty-eight booths per precinct, generally related to the number of registered or anticipated voters. Obviously, any individual voter is not delayed at all in voting if there is an empty booth available when given a ballot, regardless of how long it takes the individual to vote—and, of course, the individual is entitled to ponder his or her choices.
The volunteers observed and recorded data in the following manner. Every half-hour on the half-hour, a volunteer would note a voter (thus twenty-seven voters at most), who would then record that voter’s passage through the voting process:
• Time of arrival on the line; • Number of people in line at that time; • Time of arrival at the registration table; • Time left the registration table; • Time entered the voting booth; • Time left the voting booth; • Time left the polling place. The volunteer also recorded the total number of voting booths at the polling place. Very significantly, the volunteer was not asked to record whether all the booths were full at any given time. In his deposition, Allen gave rather evasive explanations for not having the volunteers record this data—which would seem to be the most relevant fact for the current litigation. If booths were always available, then there is no possible wait-time problem. If only one or two were unoccupied out of a large number, then there is probably not a problem. If all booths were filled, or only one or two booths were unoccupied out of a small number of booths, it would be more plausible that
this affected the observed wait times, though it could have affected, for good or ill, the length of time a voter took to record a vote.
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extra voting time for an individual voter could cause a significant clog. But no such data was recorded.
Again, to be clear, there is no evidence, from any source, as to the actual status of booths, as to how many were occupied at any time. Allen was quite cavalier in denying the need for that data:
[M]y process and my sheet generation relate to my experience of doing simulation applications in many instances. . . . I would say probably I’ve done it more in non-election system environments. . . . This issue of whether booths are free or not is rarely relevant to things my clients are asking me about, and in a way you can just derive it from other considerations using math or even simulation. Theodore Allen Dep. 31:1–16. It would seem that the volunteers could very easily have recorded this crucial information, if Allen wanted to have actual data, rather than relying on his simulations. Similarly, it seemingly would have been very easy to have the affected election officials give some indication, by affidavit or deposition, of whether booths were fully occupied ever, some of the time, or all the time, and whether they delayed checking in voters if all booths were occupied. Yet there is no such evidence, only “simulations and adjustments.” For example, one of the major adjustments was that Allen reduced the number of available booths—in exactly the precincts with the longest wait times—“to adjust the number of location booths to tailor to the precinct level model,” and “to calibrate the simulation with the measured average waiting times.” These adjustments were quite large. As stated in the report, “[t]he adjustments were:
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Detroit 1-271[:] Flint[:] Saginaw[:]

13, 5, and 11.”

It remains unclear whether these “adjustments” are the number of booths that were arbitrarily

removed, or the number of booths remaining after the adjustment. In either case, it would make a

very big difference.

The number of booths actually counted by the on-the-scene observers, and the number of

registered voters in that particular precinct, were:

Precinct
Detroit 1-271 Flint Saginaw

Number of Booths 15 28 25

Number of Registered Voters 1,505 1,714 2,772

Therefore, the model either used 2, 23, and 14—if the number of booths used was the original number minus the “adjustment”—or it used the “adjustment” numbers of 13, 5, and 11 as stated above. Either would be problematic, as “modeling” that the Detroit precinct had only two booths for over 1,500 registered voters seems unlikely, and yet, reducing Flint from 28 booths to only 5 for over 1,711 registered voters also seems excessive. So any adjustment to the booths actually observed seems unwarranted. Given the lack of data on booth availability, as well as Allen’s adjustments, the plaintiffs’ prediction of widespread bottlenecks caused by voters being unable to reach a booth because other voters were puzzling over additional choices seems implausible. Their likelihood of success on the merits of that claim is small.
Moreover, actual use of straight-ticket voting is strongly correlated to the partisanship of an area, but not to race directly. As one might expect, strong partisans are more likely to abhor
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson voting for any candidates of the opposite party and more likely to use straight-ticket voting. Some of the evidence showed that strongly Republican areas had high rates of straight-ticket voting as well, though not as high as areas that were strongly Democratic and largely African-American. But there simply were few or no Republican areas that were as strongly Republican as the strong Democratic areas were Democratic.
The Michigan House Fiscal Agency prepared a document analyzing proposed legislation eliminating straight-ticket voting (“STV”), which is included in the record as an exhibit to plaintiffs’ complaint. It compared STV rates in several of the large counties in the state in the election of 2014. Its chart showed that Ottawa County (which is almost wholly white and frequently the most Republican county in the state) used STV at a 60% rate. Wayne County, which includes Detroit, and many areas outside it, (and is usually the most Democratic county in the state) used STV at a 58% rate. It is clear that the rate of STV use in the areas of Detroit with the densest population of African-Americans is quite a bit higher, but that is a matter of degree, not of kind, and is clearly linked to strong partisanship, rather than race.
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 fifty states. This makes it unlikely that the plaintiffs will prevail on the merits. 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. See U.S. Const. art. I, § 4.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson Our circuit’s most recent case raising similar issues was Ohio Democratic Party v. Husted,
834 F.3d 620 (6th Cir. 2016). That case involved Fourteenth Amendment and Voting Rights Act challenges to Ohio’s restrictions on early voting. Our court dissected the type of showing that a plaintiff must make, the ways of analyzing a state’s interest in its voting practices and democratic policy choices, and the role of the district court in requiring rigor on both sides of the equation. We cautioned district courts not to casually “become entangled, as overseers and micromanagers, in the minutiae of state election processes, without careful consideration.” Id. at 622. We also emphasized, citing Burdick v. Takushi, 504 U.S. 428, 434 (1992), that the rigorousness of the inquiry into state election law depends on the degree to which the challenged practice actually burdens protected voting rights. Ohio Democratic Party, 834 F.3d at 626–27.
With those admonitions in mind, and in light of the factual discussion above, we turn to the three specific legal challenges raised. And we do so mindful of the cogent point made in the plaintiffs’ response to the stay motion—the Secretary must show a likelihood of success on each of the three claims raised. See Resp. of Pl.-Appellees to Def.-Appellant’s Emergency Mot. For Stay of Permanent Inj. Pending Appeal 6. The district court’s injunction is based on each of the three counts, and if the Secretary has little likelihood of success on any one of them, the stay must be denied.
Count I — The Anderson-Burdick Framework As this court noted in Ohio Democratic Party, “[e]lection cases rest at the intersection of two competing interests[,]” namely, an individual’s right to vote versus a state’s prerogative to
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regulate the right to vote. 834 F.3d at 626. To resolve these competing interests, we apply the Anderson-Burdick framework, which directs us to engage in a three-part analysis:
[First, the court must] consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. [Third], it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Id. at 626–27 (quoting Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015)) (second alteration in original). Importantly, the rigorousness of this inquiry turns on the severity of the burdens imposed by the state on the plaintiffs’ First and Fourteenth Amendment rights. Burdick, 504 U.S. at 434. Where the restriction on a plaintiff’s right to vote is severe, the state’s “regulations survive only if ‘narrowly drawn to advance a state interest of compelling importance.’” Ohio Democratic Party, 834 F.3d at 627 (quoting Burdick, 504 U.S. at 434). In contrast, where the regulations are “minimally burdensome and nondiscriminatory, rational-basis review applies, and the regulations will usually pass constitutional muster if the state can identify ‘important regulatory interests’ that they further.” Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014) (quoting Burdick, 504 U.S. at 434). Regulations that fall between these extremes—i.e., those that “impose a more-than-minimal but less-than-severe burden”—require us to “weigh[] the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Ohio Democratic Party, 834 F.3d at 627 (citation omitted). Although we review the district court’s factual findings for clear error, “the district court’s characterization of the resultant burden . . . is not a factual finding, but a legal determination
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subject to de novo review.” Id. at 628. The district court made such a legal error here. As discussed above, the plaintiffs likely have not shown that PA 268 imposes more than a minimal burden on the ability to vote. And Michigan (like forty other states, presumably), has shown far more than a rational basis for its decision. When balancing the Anderson-Burdick factors, the plaintiffs are unlikely to succeed in demonstrating, as a matter of law, that the speculative burdens noted above outweigh a deliberate choice as to our system of governance.
Count II — Intentional Discrimination As the Supreme Court made clear in Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977), “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Rather, to establish a violation of the Equal Protection Clause, “[p]roof of racially discriminatory intent or purpose is required . . . .” Id. at 265. That said, a plaintiff need not prove that the challenged action stemmed solely from racially discriminatory intentions. Ibid. To determine whether discrimination was a motivating purpose behind the challenged action, we engage in a “sensitive inquiry into . . . circumstantial and direct evidence of intent[.]” Ibid. Specifically, we consider the following “evidentiary sources”:
[1] the historical background of the decision, particularly if it reveals a series of official actions taken for invidious purposes; [2] the specific sequence of events leading up the challenged decision; [3] departures from the normal procedural sequence; [4] substantive departures, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached; [5] and the legislative or administrative history, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson Spurlock v. Fox, 716 F.3d 383, 397 (6th Cir. 2013) (alterations and internal quotation marks omitted). These factors overlap and are non-exhaustive. Ibid.
In concluding that PA 268 contravened the Equal Protection Clause’s prohibition on intentional discrimination, the district court’s analysis again lacked rigor. For instance, in assessing the “historical background” factor, the court devoted half of its discussion solely to historical voting patterns, not to the historical background of the legislature’s decision. See Michigan State A. Philip Randolph Inst., 2018 WL 3769326, at *28. And where the court did discuss the legislative decision to enact PA 268, the court confined itself to discussing the views of a supporter who was not a legislator and who gave race-neutral reasons for supporting the bill, namely, that PA 268 is good policy and that it would help Republicans. Ibid. Neither reason, of course, indicates discriminatory intent.
The remainder of the district court’s analysis is equally facile. In discussing the “specific sequence of events” factor, the court did not discuss any event, let alone a sequence of events, that led up to the decision. Instead, it simply noted that straight-ticket voting previously existed in Michigan, then cited the characterizations of two Democratic state senators, who presumably opposed the bill’s passage. Id. at *29. It should go without saying that we do not judge the intention of a bill’s supporters by the characterization of its opponents. And as for the “substantive departure” factor, the district court does not outline what is an “ordinary legislative action,” let alone how the passage of PA 268 departed from it. Instead, the court makes the non sequitur that because a lobbyist for clerk associations “encouraged clerks to ‘[t]ell [legislators] how many of [the clerks’] voters, both Republicans and Democrats, avail themselves of the straight-party
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson option[,]’ . . . the record suggests that the Michigan Legislature substantively departed from its usual conduct in enacting PA 268.” Id. at *30. For a lobbyist’s exhortations to be evidence of the conduct of other parties is quite a stretch. And the statements of those opposing any bill cannot be taken as a sign that the proponents intended the predicted parade of horribles. Such legislative arguments are just that—arguments, not facts.
The parties clash mightily on whether Supreme Court political reapportionment cases can provide any guidance for cases such as ours, in which the challenged actions may seem to be affected by the intersection of racial and partisan considerations. In such cases as Thornburg v. Gingles, 478 U.S. 30 (1986), and Shaw v. Reno, 509 U.S. 630 (1993), the Court was quite clear that political action taken to advantage or disadvantage a political party or faction does not in itself show racial discrimination. That issue is, of course, relevant here, where there is no facial distinction in how PA 268 treats voters, as opposed to the gerrymandering cases, where the drawing of district lines does affect voters of different races differently in every instance. There is strong reason for importing the Supreme Court’s analysis to cases such as ours.
In her emergency motion requesting a stay, the Secretary argues that, because partisan discrimination is a defense to a racial-gerrymandering claim, the district court erred by “conflating racial and political discrimination simply because there is an alleged correlation between Democratic Party affiliation and the African-American population.” When the Secretary raised this same argument below, the district court rejected it, holding that the court applies a standard in gerrymandering cases that is different from the standard applied in “voting rights cases.” Michigan State A. Philip Randolph Inst., 2018 WL 4024895, at *5. Specifically, a plaintiff alleging
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson intentional discrimination in a gerrymandering case must prove that race was the “predominant consideration” when drawing district lines. Ibid. In contrast, a plaintiff alleging intentional discrimination by any other government conduct need only prove that race was a “motivating factor.” Id. at *6.
Although a plaintiff challenging a gerrymander must meet a higher standard than a plaintiff challenging other government conduct (including a voting law), both of plaintiffs’ claims arise under the Equal Protection Clause of the Fourteenth Amendment. Compare Miller v. Johnson, 515 U.S. 900, 904 (1995) (gerrymander), with Arlington Heights, 429 U.S. at 265–66 (zoning laws). Thus, the Supreme Court’s interpretation of the Equal Protection Clause in cases challenging a gerrymander are relevant in cases challenging a voting law. And in the gerrymandering cases, the Supreme Court has repeatedly warned against using party affiliation and race as proxies. To do otherwise, the Court has said, would be to “reinforc[e] the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw, 509 U.S. at 647. The Court has “rejected such perceptions elsewhere as impermissible racial stereotypes.” Ibid. (listing cases).
But we need not resolve that conflict at this stage. We need only say that, in combination with the other factors mentioned, in the ultimate disposition of this appeal, the Secretary is very likely to show that the plaintiffs have not met their burden of demonstrating that PA 268 was racially motivated.
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Count III — Voting Rights Act In 1982, following the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55 (1980), Congress amended the Voting Rights Act to make clear that intentional discrimination was not a prerequisite for a claim brought under the statute. Ohio Democratic Party, 834 F.3d at 636. As amended, Section 2(a) of the VRA prohibits a state from imposing a
voting qualification or prerequisite to voting or standard, practice, or procedure … in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color[.] 52 U.S.C. § 10301(a) (emphasis added). The statute establishes that a voting practice or procedure can “result in” such a denial or abridgement even if there is no proof of discriminatory intent: A violation of subsection (a) is established if . . . the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Id. § 10301(b). In determining whether a violation of Section 2(a) occurred, we consider the totality of the circumstances. Ibid. Complicating matters somewhat is the fact that the VRA encompasses two conceptually distinct claims—an important consideration, because our jurisprudence is not equally well developed for each. First, the VRA prohibits “vote dilution” by states, i.e., the practice of “den[ying] minorities an equal opportunity ‘to elect representatives of their choice[.]’” Ohio Democratic Party, 834 F.3d at 636 (quoting 52 U.S.C. § 10301(b)). As we have previously noted, “[t]he majority of cases interpreting Section 2 arose in the vote-dilution context, epitomized by the
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson Supreme Court’s decision in Thornburg v. Gingles . . . .” Ibid. Second, the statute prohibits the practice of “vote denial,” which, as the name suggests, involves “the denial of [the] opportunity to ‘participate in the political process.’” Ibid. (quoting 52 U.S.C. § 10301(b)). Critically, “[w]hile vote-dilution jurisprudence is well-developed, numerous courts and commentators have noted that applying Section 2’s ‘results test’ to vote-denial claims is challenging, and a clear standard for its application has not been conclusively established.” Ibid.
The language of the statute alone can hardly be read to cover a change in ballot format that applies to all voters, that keeps no one away from the polls, and that prevents no one from registering their vote. So, faced with uncertainty in how to extend the language in the vote-denial context, we have applied a two-step framework when assessing such claims. Id. at 637. First, we examine whether a voting practice “resulted in an adverse disparate impact on protected class members’ opportunity to participate in the political process.” Ibid. To satisfy this element of the test, it must be shown not only that there is some statistical discrepancy between minority groups and whites, but that the challenged practice also “causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process.” Id. at 638. Second, provided that the initial step is satisfied, we consider the totality of the circumstances, “potentially informed by the ‘Senate Factors’ discussed in Gingles.” Ibid. (emphasis added). More specifically, at this stage of the analysis, we consider whether the challenged voting practice “causes the discriminatory impact as it interacts with social and historical conditions.” Ibid.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
The Gingles factors include:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Gingles, 478 U.S. at 36–37. Additional factors that “in some cases have . . . probative value” are:
“whether there is a significant lack of responsiveness on the part of elected officials to the
particularized needs of the members of the minority group” and “whether the policy underlying
the state or political subdivision's use of such voting qualification, prerequisite to voting, or
standard, practice or procedure is tenuous.” Id. at 37.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson Here the challenged practice is simply the adoption of the “office-block” system, requiring
a vote for each individual office. In granting a permanent injunction, the district court held that factors one, three, and four were not relevant to this case. Michigan State A. Philip Randolph Inst., 2018 WL 3769326, at *33 n.16. The reasoning for this is not readily apparent, and the absence of any of those factors would seem to point against invalidation of PA 268.
With respect to factor six, in support of its claim that “political campaigns in Michigan have been characterized by overt or subtle racial appeals,” id. at *35, the district court cited a comment made at a Tea Party meeting and an ambiguous comment by a former Republican state senator. The district court also drew upon the nationwide discussion of race-related issues to conclude that factor six favors the plaintiffs—a standard that, if accepted, would result in factor six always favoring plaintiffs bringing a VRA claim.
As for factor seven, the court glossed over the facts that President Obama has won the state of Michigan twice and that many elected judges—including the Chief Justice of the Michigan Supreme Court—are African-American (to say nothing of two current United States Representatives and twenty-three members of the Michigan Legislature) in concluding that this factor is neutral. Id. at *36.
In short, even if we eventually reach the second step and consider the Gingles factors, there is a significant likelihood that the result on appeal would point in the opposite direction to the district court’s analysis.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson CONCLUSION
As shown above, there are very serious problems with both the factual underpinnings and the legal analysis of the district court’s opinion. At this stage, we are not required to render a final decision on any of these points. In a stay motion, we examine the likelihood of success of the movant’s appeal (and thus the likelihood of reversal) in conjunction with the other stay factors.
The Secretary has demonstrated a likelihood of reversal. For Count I, the record shows that the district court likely erred in reaching its legal conclusion that plaintiffs had proven that the burden imposed by PA 268 was “not severe, but also not minimal.” Johnson, 2018 WL 3769326, at *27. For Count II, the district court likely committed clear error when it concluded that the plaintiffs had demonstrated by a preponderance of the evidence that the Michigan Legislature intentionally discriminated against African Americans. And for Count III, even were we to reach the second step and analyze the Gingles factors, the district court likely committed clear error by finding that the plaintiffs had proven a violation of Section 2 of the VRA.
We note that voter turnout is invariably less in midterm elections such as are impending than in the presidential election that generated most of the data, which should further reduce the likelihood of any significant harm.
But when we balance all of the factors as laid out above, we hold that the balance favors granting the stay. The Secretary’s motion is hereby GRANTED.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson KETHLEDGE, Circuit Judge, concurring. Election-law cases sometimes prompt
strong reactions, driven (often expressly) by a sense that these laws are aimed specifically at reducing African-American turnout and thus in spirit no different from the laws of Jim Crow. I share the district court’s desire to strike down every law with that aim, but I respectfully disagree that the Michigan law here is one of them. That law, known as PA 268, simply requires voters to choose candidates for each office individually, rather than vote for a party slate en masse. Forty other states have already enacted the same kind of law, including most recently Rhode Island. None of them have ever been declared unconstitutional. And one can hardly dispute, as Judge Boggs makes clear, that the Michigan law, like all the rest, is supported by good policy reasons.
Of course, some mix of policy and partisan reasons likely lay behind the enactment of PA 268. The same is likely true of most laws. But where the district court was most clearly mistaken, I respectfully submit, was in equating partisan motives with racial ones. See Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2018 WL 3769326, at *30 (E.D. Mich. Aug 9, 2018). So far as I can tell, the Supreme Court has never equated those two things; to the contrary, in any number of cases, the Court has demanded more than partisan motives to support a finding of racial intent. See, e.g., Miller v. Johnson, 515 U.S. 900, 914-16 (1995); Shaw v. Reno, 509 U.S. 630, 647-48 (1993). Here, the record shows that, in Michigan, typically about 60% of straight-ticket voters are Democrats, with about 40% Republicans. That disparity might have made Republican legislators more open to the virtues of candidate-by-candidate voting than their Democratic colleagues were. But the record gives us no reason to think those legislative views would have been any different if, say, white Democrats voted straight-ticket in much higher percentages than
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Case 2:16-cv-11C8a4s4e-:G1A8D-1-M91K0M DEoCcFuNmoe.n1t:6222-2filedF0il9e/d0:50/198/05/P2a0g1e8ID.4P8a5g8e: 2P3age 24 of(4274 of 47) No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson black Democrats do. What matters, so far as we can tell, is that more Democrats than Republicans use the straight ticket, not the racial composition of straight-ticket voters within the Democratic ranks. On this record, then, the remedy for anyone unhappy with PA 268 is not another constitutional ruling from the federal courts. The remedy instead is to wait the extra 20 minutes or so (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. With these observations, I fully join Judge Boggs’s opinion.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson BERNICE BOUIE DONALD, Circuit Judge, dissenting. This case involves one of our
most sacred and fundamental individual rights—without which all others are meaningless—to exercise one’s constitutional right to vote. The majority finds that Michigan legislation PA 268 does not disproportionately or negatively impact African American voters, that it does not violate the equal protection clause of the Fourteenth Amendment nor Section 2 of the Voting Rights Act. I dissent.
Were we writing on a clean slate, without the backdrop of a historical legacy of disenfranchisement of African Americans, one might reasonably come to that conclusion. But this court’s conclusion, no matter how finely parsed nor eloquently written, ignores the 150 years of shameful and painful history of disenfranchisement, suppression, and dilution of AfricanAmerican voters and the overt and covert mechanisms used to achieve that objective. It also ignores the fact that Michigan began efforts to dismantle this practice immediately after the passage of the 1964 Civil Rights Act, whose very purpose was to outlaw discrimination and to increase participation by African Americans in American society. Voter disenfranchisement, suppression, and oppression of African-Americans is woven into the fabric of America.
The dispositive inquiry before us—at this stage—is whether the Secretary has met her burden in satisfying the stringent four-factored test to stay the permanent injunction issued by the district court. The majority finds that bar low.
In the face of the Declaration of Independence, the U.S. Constitution, Civil Rights Statutes, and a developed body of jurisprudence, African-Americans have had to wage a more than 200year battle to get and keep the voting franchise. See Dred Scott v. Sandford, 60 U.S. 393 (1857)
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson (Citizenship is a prerequisite to voting). In December 1865, the Thirteenth Amendment was ratified which abolished slavery, but it did not provide citizenship or real protection for newly freed people. In 1868, after massive racial violence, the Fourteenth Amendment was passed and later ratified. This Amendment provided for citizenship, due process, and equal protections, among other things for “male persons” born or naturalized.
In 1870, the Fifteenth Amendment to the United States Constitution was passed to prevent states from denying the right to vote on grounds of “race, color, or previous conditions of servitude.” U.S. Const. amend. XV. Almost immediately, states began enacting laws and supporting practices to disenfranchise African American voters.
In the immediate aftermath of Reconstruction, states of the former Confederacy immediately passed Jim Crow laws and amendments to disenfranchise black voters. They imposed poll taxes, literacy tests, and other restrictions to disenfranchise African-Americans. Notwithstanding the explicit language of the Fourteenth and Fifteenth Amendments, federal courts, including the United States Supreme Court, generally sanctioned these discriminatory practices. See Giles v. Harris, 189 U.S. 475 (1903); Giles v. Teasley, 193 U.S. 146 (1904); contrast Smith v. Allwright, 321 U.S. 649 (1944); Lane v. Wilson, 307 U.S. 268 (1939) (where the court found a twelve-day one-time voter registration window to be discriminatory against black citizens and repugnant to the Fifteenth Amendment).
It was not until 1964, ninety-six years after ratifying the Fourteenth Amendment and ninety-four years after ratification of the Fifteenth Amendment, that the poll tax was eliminated as a precondition to voting in a Presidential election. U.S. Const. amend. XXIV. Similar conditions
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson were prohibited to the states in 1966. Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966).
In 1965, Congress passed the Voting Rights Act, 100 years after the passage of the Thirteenth Amendment. This chronology illustrates the long struggle and disenfranchisement of African American voters. PA 268, as the District Court found, disparately impacts African American voters and therefore, constitutes a denial of equal protection and constitutes a violation of Section 2 of the Voting Rights Act.
Since 1891, for one hundred and twenty-seven years, Michigan has permitted the practice of straight-party voting. I begin with the—perhaps coincidental—timing in which the Michigan legislature embarked on its first attempt to eliminate straight-party voting—1964. This timing is indeed significant and warrants our attention to the historical practices employed by states to continuously impose massive and unconstitutional barriers to exclude African-Americans from the franchise. During the Reconstruction era, when many states enacted laws with carefully selected disenfranchising crimes to disqualify a disproportionate number of African-American voters, to Jim Crow—marked by comprehensive and well-disguised systems of racialized social and legal control—the right to vote for African-Americans has been tumultuous. See e.g. Hunter v. Underwood, 471 U.S. 222, 233 (1985) (finding that an Alabama statute was intentionally adopted to disenfranchise blacks on account of race and that it had its intended effect).
In response, in 1965, Congress enacted the Voting Rights Act “to address entrenched racial discrimination in voting, ‘an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.’” Shelby Cty.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson v. Holder, 570 U.S. 529, 535 (2013) (quoting South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966)). Yet, this ideal has been historically difficult to attain, as many of the most “insidious” forms of discriminatory barriers affecting racial minorities are facially guised in neutrality. See Vanessa Williams, Ill-fated plan to close polling places in Georgia county recalled lingering prejudice, Wash. Post (Aug. 24, 2018), (Rudolph County Georgia Board of Elections’ proposal to close two-thirds of the polls in a predominantly African-American community just weeks ahead of a crucial mid-term election). I, unlike the majority, will not turn a blind eye to this historical relevance.
I. Standard of review To stay a district court’s order for injunctive relief, “we consider the same four factors that are traditionally considered in evaluating the granting of a preliminary injunction.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). “These well-known factors are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Id. (citations omitted). “These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.” Id. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). On the merits, we review the district court’s order issuing a permanent injunction for abuse of discretion. Howe v. City of Akron, 801 F.3d 718, 753 (6th Cir. 2015) (citing United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002)). In doing so, we have long recognized that the
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
“abuse of discretion standard of review is highly deferential.” Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 267 (6th Cir. 2001). We have repeatedly acknowledged that the abuse of discretion standard “is more than the substitution of the judgment of one tribunal for that of another.” NLRB v. Guernsey-Muskingum Elec. Co-op., Inc., 285 F.2d 8, 11 (6th Cir. 1960). In other words, “[u]nder the abuse of discretion standard, an appellate court may overturn a lower court's ruling only if it finds that the ruling was arbitrary, unjustifiable or clearly unreasonable.” Hardyman, 243 F.3d at 267 (alteration in original) (citing Plain Dealer Pub. Co. v. City of Lakewood, 794 F.2d 1139, 1148 (6th Cir.1986)). Because the determination of whether the movant is likely to succeed on the merits is a question of law, it is accordingly reviewed de novo. Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689 (6th Cir. 2014). Considering each of these factors, I do not find a stay appropriate.
A. Likelihood of Reversal on Appeal As the majority correctly notes, we must first consider whether the Secretary has demonstrated that “there is a likelihood of reversal” on appeal. While “the factors to be considered are the same for both a preliminary injunction and a stay pending appeal, the balancing process is not identical due to the different procedural posture in which each judicial determination arises.” Mich. Coal. of Radioactive Material Users, Inc., 945 F.2d at 153. With respect to the latter: [A] motion for a stay pending appeal is generally made after the district court has considered fully the merits of the underlying action and issued judgment, usually following completion of discovery. As a result, a movant seeking a stay pending review on the merits of a district court's judgment will have greater difficulty in demonstrating a likelihood of success on the merits. In essence, a party seeking a stay must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal. Presumably, there is a reduced probability of error, at least with respect to
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
a court's findings of fact, because the district court had the benefit of a complete record that can be reviewed by this court when considering the motion for a stay. Id. (emphasis added). Therefore, to succeed in her request for an emergency stay of the district court’s permanent injunction, the Secretary must demonstrate a likelihood that the district court’s ruling was “arbitrary, unjustifiable or clearly unreasonable” as to each constitutional and statutory violation found, otherwise, we are precluded from entering a stay of the district court’s permanent injunction order. Id. The Secretary makes no such showing. Yet, the majority circumvents this standard of review by failing to accord the proper degree of “high deference” to the district court’s factual findings. The majority characterizes the district court’s opinion as “extensive, but … weak” and attacks the alleged differences in the proof. The district court considered the testimony of witnesses and made credible findings. Those findings should be accorded great deference. It must be noted that this comes on a motion for extraordinary relief where the case record has not yet been fully developed and discovery is incomplete. The Secretary chose the timing of this action and strategically created the emergent conditions under which the district court and this court must act. The very pace of the litigation in the aftermath of the district court’s order has constituted a manufactured emergency. I find that the district court made detailed factual findings which amply support its conclusions of law. 1. Equal Protection Clause Challenge The majority embarks on an outcome-determinative de novo review of the district court’s factual findings. In doing so, it focuses a considerable amount of its attention on undermining the analysis conducted by one expert in the case, Professor Allen. Putting aside the impropriety of
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson dismissing the district court’s factual conclusions based on purported issues with a single expert’s opinions, the majority’s myopic attacks on the substance of Professor Allen’s opinions are misplaced.
Professor Allen’s pedigree cannot be called into doubt. He holds a Ph.D. from the University of Michigan in Industrial and Operations Engineering, teaches classes entitled “Applied Waiting Line Analysis” and “Statistical Modeling, Queueing, and Lean Production” at Ohio State University, consults regularly with counties across the nation regarding resource decisions for elections, and has authored a textbook and several published articles specifically addressing wait times in election lines. More importantly, his opinions in this case draw upon and bespeak his experience.
The majority expresses grave concerns about Professor Allen’s methodology: specifically, that he did not account for how many booths were in use at the time his team recorded data at the 31 precincts’ polling places.
Despite all of the data points Professor Allen captured (from which one can surmise whether a bottleneck occurred at the registration table or while waiting for a voting booth), the majority contends that we can never know if the elimination of straight-ticket voting would increase voting times unless we know exactly how many booths were being used and how many booths were open at the time a voter was ready to vote. This concern is misplaced for two reasons: first, it does not explain what could cause lines at the voting booth other than full voting booths, and second, it disregards Professor Allen’s reliance on his own experience and other authoritative
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson materials in making the assumption that bottlenecks occur primarily at voting booths and not registration tables.
First, given the data Professor Allen did collect, the majority does not explain satisfactorily why knowing how many booths are available helps in analyzing the impact of the statute on wait times. Professor Allen’s data distinguishes between wait times at the registration table and at the voting booth. That information is sufficient for our purposes. From it, one can determine exactly how long an individual had to wait to get into a voting booth after they finished registration, and the only plausible reason an individual would have to wait to vote after they have finished at the registration table is because there are no available booths. The majority offers no explanation to the contrary. The question of how many booths were available while individuals waited to vote is a red herring.
Second, the majority ignores the fact that Professor Allen testified and opined in his expert report that, based on his extensive experience in this field, wait times are usually caused by bottlenecks at the booths and not the registration table. Professor Allen notes specifically in his report that if he were to consider bottlenecks at “other service processes like registration or [checkin] . . . , then the total waiting times could only increase.” By concluding that Allen failed to account for potential bottlenecks at other areas of the voting process, the majority has replaced Professor Allen’s decades of experience with their own conjecture.
Next, the majority takes issue with Professor Allen’s correction of data that was improperly recorded by his team. As Professor Allen explained in his deposition, he encountered reporting from his team that did not match his instructions: “they wrote down not what I wished that they
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson would have written down, they wrote down what they believed was accurate, and in that sense it was accurate, but they didn’t understand my objectives.” He corrected the data to make the information uniform; it would have been problematic to leave the data as recorded. Of course, Professor Allen’s opinions are not perfect. Perhaps Professor Allen could have employed a more rigorous methodology from which to attain his estimate that eliminating straight-ticket voting would increase wait times by 25%. Nevertheless, perfection is not the standard. The majority overstepped its role by conducting a de novo review of Professor Allen’s opinions; and, further, the majority made a number of errors in its own analysis of the same.
Moreover, at its core, “[t]he right to vote is a ‘precious’ and ‘fundamental’ right,” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)), and it is clear that this right “is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Id. (quoting League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 477 (2008)). Specifically, “[t]he Equal Protection Clause applies when a state either classifies voters in disparate ways, or places restrictions on the right to vote.” Id. (citations omitted).
In analyzing a challenge to a voting restriction based on the Equal Protection Clause, we apply, as did the district court, the framework established by the Supreme Court in Burdick v. Takushi, 504 U.S. 428, 434 (1992), and Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983). See Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015). Under the AndersonBurdick test, we first consider the character and magnitude of the injury to the protected right. Id. at 693 (quoting Anderson, 460 U.S. at 789). Next, we identify and evaluate the interests proffered
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson by the state. “Finally, [we] must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Ohio Democratic Party v. Husted, 834 F.3d 620, 626-27 (6th Cir. 2016).
The level of scrutiny applied changes with the severity of the burden imposed. Green Party of Tenn., 791 F.3d at 692. Where the restriction of a right to vote is severe, “the statute will be subject to strict scrutiny and must be narrowly tailored and advance a compelling state interest.” Id. (quoting Burdick, 504 U.S. at 434). “On the other hand, ‘minimally burdensome and nondiscriminatory’ regulations are subject to a ‘less-searching examination closer to rational basis[,]’ and ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.’” Ohio Democratic Party, 834 F.3d at 627 (quoting Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016)). “If the burden lies somewhere in between, courts will ‘weigh[ ] the burden on the plaintiffs against the state's asserted interest and chosen means of pursuing it.’” Green Party of Tenn., 791 F.3d at 693. Based on its finding that PA 268 will disproportionately deter African Americans from voting, the district court applied the intermediate standard.
In contrast, the majority, after undertaking a de novo-like review of the district court’s factual findings, substituting its own judgment for that of expert witnesses, and ignoring the objective statistical impact of PA 268 on African Americans, determined that rational basis was the correct standard. They then state that Michigan had shown “far more than a rational basis for its decision.” However, in coming to their conclusion, the majority pays only lip service to the applicable standard of review. Because it seems necessary, I remind the majority that, “[i]n
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson reviewing the district court’s findings for clear error, we may not substitute our judgment for that of the district court and ‘must uphold the [district] court’s account of the evidence if it ‘is plausible in light of the record viewed in its entirety.’” Ohio Democratic Party, 834 F.3d at 644 (quoting Lee v. Willey, 789 F.3d 673, 680 (6th Cir. 2015)).
The majority, in its continued de novo review of the district court’s factual findings, reasons that because registration is also a component to voting, it is inconclusive whether increased wait times are attributable to the voting booth or the registration process. Therefore, the majority concludes that the district court erred in its finding that the elimination of straight-party voting will increase wait times, and thus disproportionately burden African-Americans.
This reasoning misses the point. The record is clear that, with the lone exception of the Secretary’s expert, Paul Herrnson—who the district court found to lack credibility—it is indisputable that the elimination of straight-party voting will amount to increased wait times for voters in Michigan. Specifically, the district court relied on the expert testimony of Kurt Metzger, who, after studying all Michigan counties in 2012, 2014, and 2016, found that nearly half of all Michigan voters used the straight-party option in 2016. However, in communities where AfricanAmericans constitute less than 40% of the voting-age population, the percentage of voters who use the straight-party option decreased to 46.5%. Yet, in communities where voting-age AfricanAmericans are the majority demographic, 77.7% of voters use the straight-party voting option, and
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68% of voters used the straight-party option in communities where African-Americans made up 40 to 49.9% of the voting-age population.1
The majority attempts to refute Metzger’s finding of a strong association between straightparty voting and race by pointing to straight-party popularity in communities, such as Ottawa county, where African-Americans make up no more than 1% of the population. The majority reasons that because 56% to 64% of voters in these communities also use the straight-party option, race is not the driving factor for straight-party voting. Yet, as highlighted by the district court, this reasoning is unconvincing as it fails to explain why 100 percent of majority African-American communities in Michigan experience exceptionally high straight-party voting rates.
Accordingly, the district court reasonably relied on Metzger’s expert analysis in finding that “African-Americans are more likely to use the straight-party voting option and will be disproportionately affected by its elimination.” Despite this, the majority usurps the district court’s role as fact-finder, and rests on its own conclusion that straight-party voting “is clearly linked to partisanship, rather than race.” (Maj. Op. at 10). I am not convinced. More importantly, the majority fails to so much as mention that the district court “clearly erred” in its factual findings.
In her alternative argument, the Secretary asserts that even if eradicating straight-party voting imposes a substantial burden on Michigan voters, PA 268 is facially neutral, and thus, any burden imposed by it is a burden on all voters. Accordingly, the Secretary concludes that it does
1 The Secretary argues that the expert report of Paul Herrnson accurately concludes that PA 268 will not impact wait times. However, the district court rejected Herrnson’s testimony as completely unreliable as it contradicts all other expert reports indicating that PA 268 will impose increased wait times to some degree.
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson not run afoul of the Equal Protection Clause. This argument diverges from the principled purpose and application of the Equal Protection Clause in the voting rights context.
The district court record is replete with evidence supporting its determination that—based on the conditions in Michigan as they exist today—the eradication of straight-party voting proffered by PA 268 would impose a substantial burden on the voting rights of African-Americans. Particularly, the district court relied on the testimony of several Michigan election officials and clerk associations that PA 268 would introduce substantial wait times, predicting a “doomsdaylike situation.” Particularly, testimony from the then-Chair of the House Elections Committee showed that longer wait times would be a “nightmare,” absent the enactment of no-reason absentee voting and would lead to “disaster.” Other elections clerks testified that they had “grave concerns over the lines that [PA 268] would create on voting day.” Finally, the district court relied on testimony from Christopher Thomas, who was the Director of the Michigan Bureau of Elections for thirty-six years. Thomas testified that, in his opinion, it would take at least three to five additional minutes to complete a ballot without a straight-party option.
Applying the applicable law to the facts above, along with its finding that AfricanAmericans vote the straight-party option at a significantly greater rate, the district court reasonably concluded that in those communities, African-Americans will disproportionately suffer a substantial increase in wait times, resulting in increased voter deterrence and incomplete ballots.
The majority emphasizes that most states have eliminated straight-party voting in its argument that Michigan’s eradication of the same does not offend the Equal Protection Clause. However, we are obliged to ask, not whether other states have validly enacted similar laws, but
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson whether—under the jurisdiction-specific factors at play in the state of Michigan—the eradication of Michigan’s 127-year practice of permitting straight-party voting runs afoul of constitutional or statutory protections. Indeed, “comparing the isolated voting practice of one state with the isolated voting practice of another state is not always an apples-to-apples comparison.” Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 665 (6th Cir. 2016) (“Johnson II”).
In Johnson II, the Secretary petitioned this Court for an emergency stay of the district court’s July 21, 2016, preliminary injunction of PA 268. As we correctly reasoned in Johnson II, “[i]n assessing the burden imposed on voters by a state's electoral mechanisms, courts may undoubtedly consider whether the state's practices will cause long lines and delays at polling places and how these lines and delays may impact the right of a voter to cast his or her ballot.” Id. at 665 (citing Brunner, 548 F.3d 463, 477-78)). Specifically, the Johnson II court noted that while Michigan may indeed join most states in eliminating straight-party voting, it is only one of the few states to do so while also prohibiting early voting and restricting absentee voting, “making the average wait time at physical polling locations of tremendous significance to Michigan voters.” Id. Applying the appropriate standard of review, this Court held that the Secretary failed to establish a likelihood that the district court abused its discretion.
Our reasoning in Johnson II applies with added force today: “[h]ow a state chooses to regulate the manner that a person must cast a vote undoubtedly impacts the individual right. Id. at 666. More importantly, the issue presented to us is not—as the Secretary and the majority conclude—simply the extra time that each straight-party voter will have to spend making additional selections on the ballot. Nor is it simply the longer lines at polling places resulting from
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson increased wait time. Rather, it is the fact, as supported by the record, that the longer lines will deter a disproportionate number of African-Americans from voting. Id. at 670 (Gilman, J., concurring).
As a purely factual matter, the record reflects (1) that African-Americans in Michigan overwhelmingly vote in the democratic party; (2) that African-Americans in Michigan use straightparty voting at significantly higher rates; and (3) that eradicating straight-party voting would significantly increase wait times at the poll. It follows from logic that PA 268 will disproportionately deter African-Americans in Michigan from voting. The district court properly found that PA 268 imposes a substantial burden on African-Americans. Thus, the Secretary has not met her burden of establishing that the district court abused its discretion.
Finally, as its third alternative argument against the district court’s finding of an Equal Protection violation, the Secretary asserts that analyzing the burden that PA 268 imposes on African-Americans “is not cognizable under the Fourteenth Amendment.” In support, the Secretary relies on Washington v. Davis, 426 U.S. 229, 242 (1976). However, Davis involved an alleged discriminatory employment practice, not a challenge in the voting context. Id. at 229. We analyze a challenge to a state’s law affecting the right to vote under the specific Anderson-Burdick framework. Thus, the Secretary’s argument must fail.
In balancing the burden imposed on African-American voters with the state’s interest, the district court concluded that while the state’s purported interest in (1) encouraging voters to examine each candidate without regard to political party, (2) increasing the likelihood that voters will complete the non-partisan section of the ballot, and (3) reducing confusion about how to
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson complete a ballot was “reasonable” it was not “sufficiently weighty” to justify the effect that PA 268 imposes on the voting rights of African-Americans. (citing Obama for Am. v. Husted, 697 F. 3d 423, 433 (6th Cir. 2012)). Moreover, while a state may regulate the voting process, the Supreme Court has stated that “[t]he right to associate with the political party of one’s choice is an integral part of the basic constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 57 (1973) (citing Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
The Secretary points to nothing apart from vague speculation that suggests that a voter will make a more informed choice in filling in each individual bubble rather than choosing to fill in one bubble for a straight-party vote. See Johnson II, 833 F.3d at 666. In light of the record, the district court’s conclusion was reasonable. Thus, the Secretary has not established that there is a likelihood that the district court abused its discretion in weighing the burden imposed on voters with the state’s interest.
Moreover, the Secretary argues that the district court erred in concluding that the Michigan legislature intentionally discriminated against African-Americans, without first finding a showing of racial animus. Stated plainly, the Secretary asserts that the district court’s failure to make a specific finding of racial animus by the Michigan legislature precludes an Equal Protection Clause violation. Id. At best, the Secretary’s argument is misguided and is not supported under the law.
The district court made factual findings that the overwhelming majority of AfricanAmericans in Michigan staunchly support the Democratic Party. Importantly, the district court noted that Michigan legislatures recognized the straight-party voting pattern of African-Americans in passing PA 268. The district court’s conclusion is buttressed by the Fourth Circuit’s recent
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson decision in N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir. 2016), holding that “intentionally targeting a particular race's access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose.” The majority flatly ignores what the Fourth Circuit noted that “[t]his is so even absent any evidence of race-based hatred and despite the obvious political dynamics.” Id. at 222-23. Thus, the Fourth Circuit concluded—as did the district court here—that “[a] state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act.” Id.
The Secretary further asserts that, in concluding that Michigan legislature enacted PA 268 with racially discriminatory motivation, the district court erred by considering statements made by Republican Party chair McDaniel that she supported PA 268 in part because eliminating straightparty voting “would help republicans win [elections],” and she “wanted to win.” The Secretary relies on Hunt v. Cromartie, 526 U.S. 541, 551-52 (1999) for her argument that political-based discrimination is a defense to, and defeats, a finding of racial discrimination. I am not persuaded that such a conclusion is supported by Hunt. The Secretary’s position conflates this Court’s analysis in the context of voting rights discrimination—as presented here—with that applied in the political gerrymandering context in Hunt. Moreover, it appears the Secretary’s political argument is a proxy for race discrimination.
The district court considered more than just the statements of McDaniel. The district court also acknowledged statements by Senator Knollenberg, expressing his indifference to any wait
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time that PA 268 could impose on voters and comparing voters who must wait in long lines to people “in countries who don’t have the right to vote:”
[t]o those in countries who don’t have the right to vote, I assume how long it takes isn’t on their list of concerns . . . It is time that Michigan’s elections process becomes more about people, less about political parties, and even less about how long it takes to exercise one of our most fundamental rights. The Secretary correctly notes that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Spurlock v. Fox, 716 F.3d 383, 397 (6th Cir. 2013) (internal quotations omitted). However, “evidence of a policy’s disparate impact may be probative in determining whether the policymaker harbored a discriminatory intent.” Id. (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 97 (1977)). Furthermore, a party need not show that discriminatory intent was “the dominant or primary” factor, only “that a discriminatory purpose has been a motivating factor in the decision.” Id. at 265-66. Upon consideration of the legislative history and substantial departures from the legislative norms (Michigan’s 127-year practice of straight-party voting), the district court reasonably found that eliminating the Democratic Party’s success with straight-party voting—success especially driven by African-Americans residing in communities with high voting-age African-Americans— was a motivating consideration in the Michigan Legislature’s enactment of PA 268. Accordingly, the Secretary fails to demonstrate a likelihood of reversal on appeal as to counts I or II of the district court’s finding of Equal Protection Clause violations.
2. Voting Rights Act Challenge The majority correctly points out that in determining whether a violation of Section 2(a) of the VRA occurred, we must consider the totality of the circumstances. However, when reviewing
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson the district court’s decision, the majority fails to apply this standard. Rather than showing how the district court’s conclusion was clearly erroneous, the majority points to a select few “Senate Factors” and cites to new evidence contrary to the district court’s finding, concluding that on appeal the outcome would go in the opposite direction. While the majority blames the lack of jurisprudence for “vote-denial” claims under the VRA for its troubles in applying Section 2’s “results test,” it is the incorrect application of the standard of review and erroneous use of de novo review that has led to the majority’s confusion.
Although, as the majority points out, the jurisprudence regarding a vote-denial claim has not been conclusively established, the Sixth Circuit has established guidance for evaluating these claims. The majority applies the elements set forth in Ohio Democratic Party v. Husted for votedenial claims in evaluating the district court’s review of the vote-denial claim: (1) whether a voting practice “resulted in an adverse disparate impact on protected class members’ opportunity to participate in the political process” and (2) whether the challenged practice “causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process[.]” 834 F.3d 620, 637 (6th Cir. 2016). While its approach is correct, the majority’s analysis loses sight of the totality of the circumstances in reviewing the district court’s findings.
First, the majority concludes that the first element is not met because the change in ballot format applies to all voters, keeps no one away from the polls, and prevents no one from registering to vote. However, the requirement of the first element does not hang merely on the language of the statute, but rather the first element “requires proof that the challenged standard or practice
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process.” Id. at 638. As the district court found, the change will have a disproportionate impact on African American voters in Michigan, who use straight-party ballots at a significantly higher rate than other demographics, by creating longer wait times at the polls and thereby deterring voters from participating. Michigan State A. Philip Randolph Inst., 2018 WL 3769326, at *86.
Next, the majority states that the claim fails on the second element because of evidence pointing in the opposite direction. However, the majority’s assessment does not adhere to the standard of review—clear error. To begin, the majority noted that the second element may potentially be informed by the “Senate Factors” discussed in Thornburg v. Gingles. 478 U.S. 30, 43-45 (1986). The majority then reviews the district court’s assessment of the Gingles factors, noting that the district court held that factors one, three and four were not relevant to this case and that the absence of those factors would seem to point against invalidation of PA 268 and further discussing factors six and seven, pointing to evidence it finds contrary to the district court’s conclusion. Based on this assessment, and without discussion as to why the district court’s findings were clearly erroneous, the majority incorrectly concludes that there is a significant likelihood that the result of this analysis on appeal would point in the opposite direction to the district court’s analysis.
Importantly, “Section 2, unlike other federal legislation that prohibits racial discrimination, does not require proof of discriminatory intent.” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352,
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No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson 363 (6th Cir. 2002). Rather, “a plaintiff need show only that the challenged action or requirement has a discriminatory effect on members of a protected group.” Id.
Moreover, “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47 (1986). Guided by the Judiciary Committee Report, the Supreme Court in Gingles listed several factors “that might be probative of a § 2 violation,” Id. at 36.
Citing Gingles factors 2, 5, 6, 7, 8, and 9 as relevant, the district court concluded that the plaintiffs demonstrated that PA 268 would disproportionately impact African-American voters in Michigan because of their significantly higher usage of the straight-party option. The district court further found that this burden was linked to social and historical conditions in Michigan such as: historical discrimination in education resulting in lower literacy rates; discrimination in housing; and subtle racial appeals that have or currently produce discrimination against members of the protected class. The majority fails to articulate why Section 2 would not apply in this context, therefore they fail to demonstrate that the Secretary is likely to succeed on appeal as to the district court’s conclusion the PA 268 violates the Voting Rights Act.
B. Irreparable Injury, Prospect that Others Will be Harmed and the Public Interest I now turn to the irreparable injury, harm, and public interest factors. This Court has acknowledged that “[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed.” Obama for Am. Husted, 697 F. 3d at 436 (citing ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003)). “A restriction on the fundamental right to vote therefore
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constitutes irreparable injury.” Id. Indeed, the Secretary correctly notes that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1,3 (2012) (Roberts, C.J., in chambers). The Secretary argues that “operation of PA 268 is the status quo” and that “a stay will not burden African-Americans.” Importantly, Michigan residents have enjoyed the option of straight-party voting for the past 127 years, since 1891. The abrogation of straight-party voting upends the status quo. Therefore, logic follows that maintaining the status quo in Michigan compels the continuance of Michigan’s 127-year practice of permitting straight-party voting. As this Court has already noted:
This case does not involve the potential disruption of complicated electionadministration 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-ticket procedure that it has used since 1891. Johnson II, 833 F.3d at 669. On the contrary, staying the district court’s permanent injunction of PA 268—on the heels of an election—would likewise result in voter confusion that could, alone, impose a substantial burden on Michigan voters, particularly African-American voters. As we have been warned by the Supreme Court, “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam). To the extent the state suffers any harm from continuing its 127-year practice of straightparty voting pending appeal, any prospective harm suffered by the state is minimal in comparison
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Case 2:16-cv-11C8a4s4e-:G1A8D-1-M91K0M DEoCcFuNmoe.n1t:6222-2filedF0il9e/d0:50/198/05/P2a0g1e8ID.4P8a8g1e: 4P6age 47 of(47 of 47) No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson to the potential harm suffered by African-American voters in Michigan.2 Finally, the public interest warrants against disturbing Michigan’s 127-year practice of straight-party voting on the eve of Election Day. It is also worth noting that the Secretary’s significant lag in appealing the district court’s order, and in seeking an emergency stay in this Court is strongly contradictory to her newly-found sense of urgency in this matter. Because I disagree with the majority that the Secretary has met her burden of demonstrating that the district court was “arbitrary, unjustifiable or clearly unreasonable” as to each statutory and constitutional violation found, I respectfully dissent.
2 The Secretary’s two-week long wait to appeal the district court’s August 1, 2018 order further cuts against her argument of irreparable harm. While the district court amended its order on August 9, 2018 to merely add a table of contents, this did not preclude the Secretary from appealing the district court’s decision sooner.
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 Case 2:16-cv-1C18a4s4e-:G1A8-D1-9M1K0M DEoCcFumNeon. t1: 6336-1filedF0ile1d/1:40/1/914/2P0a1g9eID.P48a8g2e: 1Page 1 of 2 (1 of 2)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: January 14, 2019

Ms. Denise C. Barton Ms. Ann M. Sherman Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Mr. Mark C. Brewer Law Offices 17000 W. Ten Mile Road Second Floor Southfield, MI 48075-0000
Ms. Mary Ellen Gurewitz Sachs Waldman 2211 E. Jefferson Street Suite 200 Detroit, MI 48226
Re: Case No. 18-1910, MI State A. Philip Rand Inst., et al v. Ruth Johnson Originating Case No. : 2:16-cv-11844
Dear Counsel:
The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure No mandate to issue

s/Amy E. Gigliotti for Robin L. Baker Case Management Specialist Direct Dial No. 513-564-7014

Case 2:16-cv-1C18a4s4e-:G1A8-D1-9M1K0M DEoCcFumNeon. t1: 6336-2filedF0ile1d/1:40/1/914/2P0a1g9eID.P48a8g3e: 1Page 2 of 2 (2 of 2)

No. 18-1910
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Jan 14, 2019 DEBORAH S. HUNT, Clerk

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.

)

O R D E R

Before: BOGGS, KETHLEDGE, and DONALD, Circuit Judges.
Asserting mootness, the defendant moves to vacate the district court judgment and opinion on appeal and for remand to the district court with instructions to dismiss the case with prejudice. The plaintiffs do not oppose dismissal of the appeal as moot but oppose vacatur of the district court’s judgment. The defendant replies in support of the motion.
Upon review, the motion is GRANTED. This appeal is dismissed as moot; the matter is remanded to the district court with instructions to vacate the judgment on appeal and to dismiss the complaint in this action.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 2:16-cv-11844-GAD-MKM ECF No. 181 filed 05/31/19 PageID.5181 Page 1 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, ET AL.,
Plaintiffs,
v.

Case No. 16-cv-11844
UNITED STATES DISTRICT COURT JUDGE GERSHWIN A. DRAIN

RUTH A. JOHNSON, Defendant.

UNITED STATES MAGISTRATE JUDGE MONA K. MAJZOUB
/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS [#169] IN PART

I. INTRODUCTION

Present before the Court is Plaintiffs Michigan State A. Philip Randolph

Institute, Mary Lansdown, Erin Comartin, Dion Williams, and Common Cause’s

Motion for Attorneys’ Fees and Costs. Dkt. No. 169. For the reasons set forth

below, the Court will GRANT the Motion IN PART [#169] and award attorneys’

fees and costs in the amount of $530,874.29.

II. BACKGROUND

Plaintiffs initiated this suit against Michigan Secretary of State Ruth A.

Johnson (“Defendant”) on May 24, 2016, challenging the constitutionality of

Public Act 268, which eliminated straight-ticket voting in Michigan. Dkt. No. 1.

-1-

Case 2:16-cv-11844-GAD-MKM ECF No. 181 filed 05/31/19 PageID.5182 Page 2 of 24
On July 22, 2016, the Court granted Plaintiffs’ Motion for a Preliminary Injunction, thereby enjoining the statute from going into effect. Dkt. No. 25. As a result, straight-ticket voting remained available for both the November 2016 General Election and the November 2017 Odd-Year Election. See Dkt. No. 172, p. 5 (Pg. ID 4969).
On August 1, 2018, after conducting a bench trial, the Court entered a Judgment in favor of Plaintiffs and granted their request for a permanent injunction. Dkt. No. 151; Dkt. No. 152. Defendant appealed, and on September 5, 2018, the Sixth Circuit issued a stay of that injunction. Dkt. No. 161. Consequently, Public Act 268 was operative for the November 2018 General Election. Dkt. No. 172, p. 6 (Pg. ID 4970).
During the 2018 General Election, Michigan voters passed Proposal 18-3, which amended the Michigan Constitution to preserve straight-ticket voting. Id. Because of the amendment, this case became moot on appeal, and the Sixth Circuit entered an order directing the Court to vacate judgment and dismiss Plaintiffs’ Complaint on remand. Dkt. No. 163.
Now, Plaintiffs bring the instant Motion, arguing they are entitled to $1,149,041.25 in attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e) because they obtained a favorable judgment in the district court that was never reversed on the merits. Dkt. No. 169.
-2-

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III. DISCUSSION A. Plaintiffs are the Prevailing Party with Respect to the Court’s Order
Granting a Preliminary Injunction. “Under 42 U.S.C. § 1988(b), the ‘prevailing party’ in an action to enforce civil rights under § 1983 may recover ‘a reasonable attorney’s fee as part of the costs’ of litigation.” Green Party of Tenn. v. Hargett, 767 F.3d 533, 552 (6th Cir. 2014) (quoting Hescott v. City of Saginaw, 757 F.3d 518, 2014 WL 2959289, at *3 (6th Cir. 2014)). “To be considered a prevailing party, a litigant must have ‘receive[d] at least some relief on the merits of his claim’ amounting to a ‘courtordered change in the legal relationship between the plaintiff and the defendant.’” Id. (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603-04 (2001)). “Absent a direct benefit, the plaintiff achieves only a symbolic victory, which § 1988(b) does not compensate.” McQueary v. Conway, 614 F.3d 591, 598 (6th Cir. 2010). In certain contexts, the attainment of a preliminary injunction can serve as a basis for prevailing party status. See McQueary, 614 F.3d at 600. Courts are thus instructed to exercise their discretion and undertake a case-specific factual inquiry. Id. at 604. Generally, “there is only prevailing party status if the [preliminary] injunction represents an unambiguous indication of probable success on the merits, and not merely a maintenance of the status quo ordered because the balance of the equities greatly favors the plaintiff.” Dubuc v. Green Oak Twp., 312 F.3d 736, 753
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(6th Cir. 2002) (internal quotations omitted). Additionally, where a claimant wins a preliminary injunction, and nothing more, a request for attorney’s fees should typically be denied. See McQueary, 614 F.3d at 604; see also Sole v. Wyner, 551 U.S. 74, 86 (2007) (“We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against her.”).
Here, the Court finds that Plaintiffs are entitled to attorneys’ fees in connection with their request for a preliminary injunction. The Court granted Plaintiffs’ request for a preliminary injunction on July 22, 2016. Dkt. No. 25. As a result, Defendant was precluded from enforcing Public Act 268 during two election cycles: the November 2016 General Election and the November 2017 Odd-Year Election. Furthermore, the preliminary injunction was predicated on the likelihood that Plaintiffs would succeed on the merits of their claims, and not just on maintaining the status quo. See id.; Dubuc, 312 F.3d at 753.
Following the preliminary injunction, Plaintiffs went on to win on the merits of their claims, obtaining both a favorable Judgment and an Order permanently enjoining Public Act 268. See Dkt. No. 151; Dkt. No. 152. Although the Sixth Circuit stayed the permanent injunction, and later dismissed the case on appeal as moot, this Court’s decision was never reversed on the merits. Hence, this is not a case where Plaintiffs obtained a preliminary injunction, only to receive an
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unfavorable outcome in the end. Cf. Sole, 551 U.S. at 83 (“Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.”). Nor is this a case where Plaintiffs obtained a preliminary injunction, and nothing more. See McQueary, 614 F.3d at 604. Accordingly, Plaintiffs are the prevailing party with respect to the Court’s Order granting a preliminary injunction.
B. Plaintiffs are not the Prevailing Party with Respect to the Court’s Order Granting a Permanent Injunction.
While Plaintiffs were the prevailing party with respect to the Court’s Order granting a preliminary injunction, the same cannot be said regarding the Order granting a permanent injunction.
Again, to achieve prevailing party status, a litigant must receive at least some relief on the merits of his claim. Hargett, 767 F.3d at 552. “If the court of appeals reverses on the merits of the underlying claims, the formerly prevailing party no longer prevails and is no longer entitled to fees.” Id. But “if the reversal is not on the merits, it does not necessarily upset the prevailing party’s status.” Id. “When plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still prevailing parties for the purposes of attorney’s fees for the district court
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litigation.” Id. (quoting Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009)).
Here, it is undisputed that Plaintiffs obtained the relief that they sought from this Court. Indeed, the Court entered a Judgment in their favor and granted their request to permanently enjoin Public Act 268. The Sixth Circuit did not reverse this decision on the merits; rather, an intervening event, the passage of Proposal 18-3, rendered the case moot on appeal. Under these facts, Plaintiffs would be considered the prevailing party for purposes of attorneys’ fees. See id.
Defendant concedes that, in theory, this is the correct conclusion. See Dkt. No. 172, p. 12 (Pg. ID 4976) (“Defendants [sic] agree, generally, that a dismissal on mootness grounds based on a statutory change (or in this case constitutional amendment) and a vacatur of the district court order do not, in and of themselves, negate a party’s status as a prevailing party.”). However, Defendant contends that the Sixth Circuit’s stay of the permanent injunction alters the prevailing party analysis because the stay prevented any court-ordered change in the parties’ legal relationship from materializing. See Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (“[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”). Although it
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does not appear that the Sixth Circuit has ever addressed this issue, Defendant presents two out-of-circuit cases in support.
Defendant first cites to UFO Chuting of Hawaii, Inc. v. Smith, where the Ninth Circuit held that plaintiffs were not the prevailing party under § 1988 despite having initially obtained a final judgment and a permanent injunction. 508 F.3d 1189, 1198 (9th Cir. 2007). In that case, plaintiffs filed suit challenging whether a Hawaii statute prohibiting parasailing activity from December 15 to May 15 of each year was pre-empted by federal law. Id. at 1191. The district court held that it was, and permanently enjoined the statute. Id.
Subsequently, the President signed into law a bill permitting Hawaii to enforce that very statute. Id. at 1192. Immediately after, the state filed a motion to stay the permanent injunction and vacate the judgment. Id. On December 13 of that year, two days before the permanent injunction was set to go into effect, the district court granted both motions and entered summary judgment in favor of the state. Id. The district court also denied plaintiffs’ motion for attorney’s fees, reasoning that plaintiffs were not the prevailing party because the permanent injunction was never implemented, and therefore, plaintiffs never received its benefit. Id. The Ninth Circuit affirmed that decision on the same grounds. Id. at 1198 (“Because the district court stayed the implementation of the permanent
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injunction before the State had to change its behavior . . . [plaintiffs] cannot be considered the ‘prevailing party.’”).
Defendant also cites to Doe v. Nixon, where the Eighth Circuit held that plaintiffs were not the prevailing party after having their preliminary injunction stayed by the court of appeals and their complaint dismissed as moot. 716 F.3d 1041, 1049 (8th Cir. 2013). There, plaintiffs filed suit challenging Missouri’s “Halloween Statute,” which required any registered sex offender to, among other things, avoid all Halloween-related contact with children on October 31 of each year. Id. at 1045-46. After the district court granted plaintiffs’ motion for a preliminary injunction, the state appealed, and the Eighth Circuit issued a stay, one day before the injunction was set to take effect. Id. at 1046. Once that year’s Halloween had passed, the Eighth Circuit dismissed the state’s appeal as moot. Id.
After the case was remanded to the district court, separate state court litigation deemed the Halloween Statute unconstitutional as applied to plaintiffs. Id. at 1047. This, in turn, rendered plaintiffs’ lawsuit moot, resulting in the dismissal of the case. Id. Despite the dismissal, the district court awarded plaintiffs with attorney’s fees, finding they were the prevailing party because they had obtained the preliminary injunction. Id. at 1047. The Eighth Circuit, however, disagreed, explaining that while “the preliminary injunction may have served as a court-ordered change in the parties’ legal relationship, this change was never
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realized because of our stay of that order.” Id. at 1049. The court concluded that the district court’s order “effectively served as a judicial pronouncement without judicial relief.” Id.; see Farrar, 506 U.S. at 110 (“[A] judgment—declaratory or otherwise—will constitute relief, for purposes of § 1988, if, and only if, it affects the behavior of the defendant toward the plaintiff.”) (internal quotations omitted).
At first glance, both cases provide meaningful guidance; though, UFO Chuting is arguably distinguishable in one respect. Namely, unlike in UFO Chuting, this Court’s Final Judgment was never reversed on the merits, but instead dismissed on appeal as moot. Cf. 508 F.3d at 1192 (the district court stayed the permanent injunction, vacated the plaintiffs’ judgment, and then entered summary judgment in favor of the State). Nevertheless, the decision in UFO Chuting did not turn on the reversal of plaintiffs’ underlying claims; rather, the Ninth Circuit focused on the fact that a court-ordered stay absolved the state from having to change its behavior towards the plaintiffs. See id. at 1198. Hence, plaintiffs never received a direct benefit from the district court’s injunction. Id.; see McQueary v. Conway, 614 F.3d 591, 598 (6th Cir. 2010) (“A material change directly benefits a plaintiff by modifying the defendant’s behavior toward him. Absent a direct benefit, the plaintiff receives only a symbolic victory, which § 1988(b) does not compensate.”) (internal quotations and citations omitted).
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Here, like in UFO Chuting, Plaintiffs never received the benefit of this Court’s Order granting their request for a permanent injunction. See 508 F.3d at 1198. The injunction Order was entered on August 1, 2018, but stayed by the Sixth Circuit on September 5, 2018, thereby allowing Defendant to enforce Public Act 268 during the November 2018 General Election. Because the case was dismissed following that Election, the permanent injunction never forced Defendant to alter her behavior towards Plaintiffs.
The Eighth Circuit’s decision in Doe provides an even closer parallel. See 716 F.3d at 1049. Here, like in that case, a stay from the court of appeals prevented an order for injunctive relief from going into effect. See id. Essentially then, the Court issued a judicial pronouncement unaccompanied by any judicial relief. This does not entitle Plaintiff to attorneys’ fees. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 606 (2001) (holding party does not prevail where they acquire a judicial pronouncement without judicial relief).
In short, the Court finds that Plaintiffs did not prevail with respect to the Court’s Order granting their request for a permanent injunction. Both UFO Chuting and Doe suggest that a court-ordered stay alters the prevailing party analysis. See 508 F.3d at 1198; 716 F.3d at 1049. This is consistent with the touchstone of the prevailing party inquiry; that is, whether there is a material
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change in the legal relationship between the parties. See Farrar, 506 U.S. at 111 (“[T]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.”). Here, the Sixth Circuit’s stay of the permanent injunction prior to the 2018 General Election prevented any such change from occurring. See Nken v. Holder, 556 U.S. 418, 429 (2009) (noting a stay suspends judicial alteration of the status quo).
C. The Court will Award Plaintiffs with Attorneys’ Fees and Costs for Work Completed in Connection with the Preliminary Injunction.
“Title 42 U.S.C. § 1988 provides that in federal civil rights actions ‘the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.’” Blum v. Stenson, 465 U.S. 886, 888 (1984) (quoting 42 U.S.C. § 1988(b)). “The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id. “Adjustments to that fee then may be made as necessary in the particular case.” Id.
The party seeking attorney’s fees bears the burden of submitting evidence supporting the hours worked and the rates sought. The N.E. Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016). “In determining hours, a court must exclude from this initial fee calculation hours that were not reasonably expended.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)) (internal quotations omitted). To that end, “[c]ounsel are expected to exclude from a fee
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request hours that are excessive, redundant, or otherwise unnecessary.” Id. (quoting Hensley, 461 U.S. at 434) (internal quotations omitted).
Similarly, “[h]ourly rates should not exceed what is necessary to encourage competent lawyers within the relevant community to undertake legal representation.” Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995). Indeed, fees should be based on market rates for the services rendered. Id. To guide the inquiry, courts ordinarily look to “rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. (quoting Blum, 465 U.S. at 896 n.11). But in the case of private attorneys, “normal billing rates usually ‘provide an efficient and fair short cut for determining the market rate.’” Id. (quoting Gulfstream III Assoc., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 422 (3d Cir. 1993)).
As an initial matter, because Plaintiffs prevailed only with respect to the preliminary injunction, the Court must attempt to identify and isolate the work their attorneys completed in connection with that court order. See Dkt. No. 25. The Supreme Court has cautioned that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. Considering this, and in furtherance of fairness and efficiency, the Court will credit Plaintiffs for all work their attorneys completed on or before September 9, 2016. There are two reasons for selecting this date.
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First, this date encompasses the time Plaintiffs spent litigating their Motion for a Preliminary Injunction. That Motion was filed on May 27, 2016 and the Court granted the Motion on July 22, 2016. See Dkt. No. 4; Dkt. No. 25. Second, this date marks the day on which the Supreme Court denied Defendant’s Petition to Stay the Preliminary Injunction, signaling an end to the litigation surrounding the preliminary injunction. See Dkt. No. 169-3, p. 5 (Pg. ID 4912).
With this time frame in mind, the Court will now turn to the fee requests submitted by each of Plaintiffs’ attorneys.
1. Mary E. Gurewitz Attorney Mary Gurewitz served as one of two lead counsel in this case. She has practiced law for forty-four years and is currently Of Counsel at her fourteenperson Detroit-based law firm. Dkt. No. 169-1, p. 2 (Pg. ID 4902). She specializes in the representation of labor unions, in both the public and private sectors, and in political and election law. Id. In past cases, she has been awarded attorney’s fees in the range of $350 to $475 per hour. Id. at p. 3 (Pg. ID 4903). Attorney Gurewitz asserts that from March 21, 2016 to March 6, 2019 she spent 1,046.9 hours working on this case. Dkt. No. 169-3, pp. 2-14 (Pg. ID 490921). 257.2 of these hours were for work completed on or before September 9,
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2016. Id.1 She is asking to be compensated at a rate of $500 per hour. Dkt. No. 169-1, p. 6 (Pg. ID 4906). Defendant, on the other hand, argues that she should only be compensated at a rate of $325 per hour based on the median compensation for Of Counsel attorneys in the state of Michigan. See Dkt. No. 169-4, p. 3 (Pg. ID 4929).
Here, the Court finds that a rate of $500 per hour is reasonable compensation for Attorney Gurewitz’s services. Per the Michigan State Bar Economics of Law Survey, this figure places her between the 75th and 95th percentiles of hourly billing rates for Of Counsel attorneys in the state. See Dkt. 169-4, p. 3 (Pg. ID 4929). Given her forty-four years of experience, her expertise within the field of election law, and the complexity of this case, there is justification for compensating her at the upper end of this spectrum. Moreover, the $500 per hour rate falls within range of the compensation she has been awarded in past cases Accordingly, Attorney Gurewitz is entitled to $128,600 in attorney’s fees for the 257.2 hours of work she expended in this case through September 9, 2016.
2. John R. Runyan, Jr. Attorney John Runyan, Jr. is a partner at Attorney Gurewitz’s law firm, and served as support counsel. He asserts that he spent 2.3 hours working on this case 1 This number does not include the 2.3 hours that Attorney Gurewitz worked on September 9, 2016 following her review of the Supreme Court’s Order Denying Defendant’s Petition to Stay the Preliminary Injunction. See Dkt. No. 169-3, p. 5 (Pg. ID 4912).
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from January 30, 2019 through January 31, 2019. Dkt. No. 169-3, p. 14 (Pg. ID 4921). However, because all of this work falls outside of the applicable time frame set by the Court (on or before September 9, 2016), his request for attorney’s fees will be Denied.
3. Andrew Nickelhoff Attorney Andrew Nickelhoff is another partner at Attorney Gurewitz’s law firm who served as support counsel. He claims that he spent 3.4 hours working on this case, but only 0.9 of those hours were for work completed on or before September 9, 2016. Id. at pp. 14-15 (Pg. ID 4921-22). He, like Attorney Gurewitz, requests to be compensated at a rate of $500 per hour. Dkt. No. 169-1. P. 6 (Pg. ID 4906). Defendant, however, asks the Court to compensate him at a rate of $250 per hour, consistent with the median rate for attorneys practicing in downtown Detroit. See Dkt. No. 169-4, p. 4 (Pg. ID 4930). Here, the Court agrees that $250 per hour is the appropriate rate of compensation for Attorney Nickelhoff. This figure places him around the 25th percentile for Partner billing rates in the state of Michigan. See id. at p. 3 (Pg. ID 4929). The Court chooses the lower end of this spectrum for two reasons. First, Attorney Nickelhoff provided no background information about his experience as an attorney or within this field of law. Hence, the Court has little basis for comparison. Second, his contribution in this case was scant. Indeed, the 0.9 hours
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he contributed through September 9, 2016 involved mostly participation in office conferences. See Dkt. No. 166-3, pp. 14-15 (Pg. ID 4921-22). Accordingly, the Court will award Attorney Nickelhoff $225 in attorney’s fees.
4. Marshall J. Widick Attorney Marshall Widick is also a partner at Attorney Gurewitz’s law firm and served as support counsel. He spent 1.2 hours working on this case on August 21, 2017. Dkt. No. 169-3, p. 15 (Pg. ID 4922). Here, however, his work falls outside of the applicable time frame set by the Court (on or before September 9, 2016), and thus, his request for attorney’s fees will be Denied. 5. Mami Kato Attorney Mami Kato, a partner at Attorney Gurewitz’s law firm, provided support on this case from August 11, 2016 to December 17, 2018. Id. She calculates her total contribution to be 5.7 hours; though, only 2.5 of these hours came on or before September 9, 2016. Id. She requests an hourly rate of $500. Dkt. No. 169-1, p. 6 (Pg. ID 4906). In response, Defendant argues that she should be compensated at a rate of $250 per hour, in line with the median rate for attorneys in downtown Detroit. Dkt. No. 172, p. 20 (Pg. ID 4984). Here, for the same reasons explained above with respect to Attorney Nickelhoff, the Court finds that $250 per hour is appropriate compensation for
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Attorney Kato. Accordingly, the Court will award her $625 in attorney’s fees for the 2.5 hours she contributed to this case through September 9, 2016.
6. Richard M. Olszewski Attorney Richard Olszewski is an Associate at Attorney Gurewitz’s law firm who worked on this case from June 23, 2016 to July 21, 2017 for a total of 23.4 hours. Dkt. No. 169-3, pp. 15-16 (Pg. ID 4922-23). 13.3 of these hours came on or before September 9, 2016. Id. Unlike his fellow colleagues, he requests to be compensated at a lower rate of $250 per hour. Dkt. No. 169-1, p. 6 (Pg. ID 4906). Defendant argues for an even lower rate of $200 per hour, consistent with the 25th percentile for attorneys in downtown Detroit. Dkt. No. 172, p. 20 (Pg. ID 4984). Here, the Court finds that $200 per hour is an appropriate rate of compensation for Attorney Olszewski. This figure places him around the 25th percentile for Associate billing rates in Michigan. See Dkt. No. 169-4, p. 3 (Pg. ID 4929). The Court chooses the lower end of this spectrum because he provided no background information about his experience as an attorney or in this particular field of law. Furthermore, his contribution to this case during the applicable period was minimal: a total of 13.3 hours. See Dkt. No. 169-3, pp. 15-16 (Pg. ID 492223). Accordingly, Attorney Olszewski is entitled to $2,660 in attorney’s fees.
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7. Mark C. Brewer Attorney Mark Brewer served as lead counsel in this case along with Attorney Gurewitz. He has practiced law in the state of Michigan for over thirtyfive years, and currently works for the Southfield-based firm of Goodman Acker, P.C. Dkt. No. 169-5, p. 2 (Pg. ID 4934). There, he specializes in political, campaign finance, and election law. Id. In his practice, he bills clients anywhere from $300 to $500 per hour. Id. at p. 3 (Pg. ID 4935). Attorney Brewer asserts that he spent a total of 1060.9 hours working on this case from February 25, 2016 to February 20, 2019. Dkt. 169-6. 796.3 of those hours came on or before September 9, 2016. Id. He requests to be compensated at a rate of $500 per hour. Dkt. No. 169-5, p. 5 (Pg. ID 4937). Defendant, however, argues that he should be limited to a rate of $275 per hour based on the average for his experience, location, and practice area. Here, consistent with the award to Attorney Gurewitz, the Court finds that $500 per hour is the appropriate rate of compensation for Attorney Brewer. While it is unclear the position that he holds at his law firm, his thirty-five years of practice, and his expertise in political, campaign finance, and election law, warrants an award comparable to Attorney Gurewitz. The fact that he contributed the most hours in this case during the applicable period lends even more support to this conclusion. Further, this $500 per hour rate falls squarely within his normal
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client billing rate. See Hadix, 65 F.3d at 536 (holding normal billing rates usually provide an efficient and fair short cut for determining the market rate). Accordingly, the Court will award Attorney Brewer $398,150 in attorney’s fees for the 796.3 hours he worked on this case through September 9, 2016.
8. Total Fees and Costs In total, Plaintiffs are entitled to $530,260 in attorneys’ fees. In addition to this amount, 52 U.S.C. § 10310(e) permits courts, in an action to enforce voting rights, to award the prevailing party reasonable litigation expenses as part of the costs. 52 U.S.C. § 10310(e) (“In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation expenses as part of costs.”). Here, Attorney Gurewitz identifies a $214.29 Lexis Nexis billing charge from August 11, 2016. See Dkt. 169-3, p. 17 (Pg. ID 4924). Because this charge is dated around the time the parties were litigating Defendant’s Emergency Motion to Stay the Preliminary Injunction, the Court will presume a connection to that injunction. Hence, this cost will be recoverable. See Smith v. Service Master Corp., 592 F. App’x 363, 368 (6th Cir. 2014) (“We see no reason for an absolute
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rule that the cost of computer research is or is not recoverable. Any recovery should be for the actual cost of the online access or service.”).2
Attorney Brewer also identifies a $400 filing fee charge. See Dkt. No. 1695, p. 6 (Pg. ID 4938). The Court’s docket shows that Plaintiffs paid a $400 filing fee when they initiated this suit on May 24, 2016. Therefore, this cost will likewise be recoverable. See Dkt. No. 1.3 Accordingly, Plaintiffs are entitled to $530,260 in attorneys’ fees plus $614.29 in litigation costs, bringing their total award to $530,874.29.
D. The Court will not Implement a Ten to Twenty-Percent Across-theBoard Reduction for Duplicative Billing and/or Vague or BlockBilling Entries.
Defendant asks the Court to reduce any fee award amount by ten to twenty percent because Plaintiffs allegedly engaged in duplicative billing and/or vague or block billing practices. Dkt. No. 172, p. 17 (Pg. ID 4981). The Court will Deny this request.
To establish that one is entitled to reimbursement for particular items of attorneys’ fees, “the fee petitioner must provide the court with the attorneys’ billing records that describe the work performed in sufficient detail to establish that
2 Attorney Gurewitz identifies several other costs related to this case. However, these costs were either accrued after September 9, 2016 or not associated with a particular date. 3 Attorney Brewer also identifies $161.63 in Lexis Nexis research charges. However, he fails to link these charges with any particular date.
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the work is reasonably related to the litigation.” Gratz v. Bollinger, 353 F. Supp. 2d 929, 939 (E.D. Mich. 2005) (quoting In re Samuel R. Pierce, Jr., 190 F.3d 586, 593-94 (D.C. Cir. 1999)). “The Supreme Court has instructed district courts to exclude fees that were not ‘reasonably expended,’ such as fees due to overstaffing or redundancy of work.” Id. at 937 (citing Hensley, 461 U.S. at 434).
Defendant first argues that the Court should implement a twenty-percent across-the-board fee reduction because several of Plaintiffs’ attorneys billed for work on the same documents and for a considerable amount of conferencing among themselves. Dkt. No. 172, p. 23 (Pg. ID 4987). As examples, Defendant notes eighteen billing entries by Attorney Brewer showing he researched and drafted the Complaint in this case, while Attorneys Gurewitz and Nickelhoff billed for reviewing and revising that same Complaint; twenty entries by Attorney Brewer for drafting a brief, while Attorney Gurewitz billed for reviewing and working on that same brief; and several entries by Attorneys Brewer and Gurewitz identifying calls placed and emails sent between the two of them. See id. at pp. 2425 (Pg. ID 4988-89).
Here, the examples that Defendant cites of duplicative billing do not suggest that Plaintiffs’ attorneys’ fees request is unreasonable. There is nothing unusual about lawyers collaborating on and reviewing each other’s work. Nor is it unusual for attorneys to regularly communicate with each other, especially here where the
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two lead attorneys are from different law firms. See Gratz, 353 F. Supp. 2d at 942 (recognizing there is nothing inherently unreasonable about making an award for time spent by two or more lawyers engaged in the same representation). This was a complex voting rights case requiring, as Plaintiffs emphasize, “significant efforts to research and draft the complaint, amass supporting evidence, secure expert witnesses, [and] draft pleadings for the district court and court of appeals.” See Dkt. No. 175, p. 12 (Pg. ID 5153). Any overlap by Plaintiffs’ attorneys in these efforts was not so excessive, or unnecessary, such as to warrant the type of reduction that Defendant requests.
Furthermore, this is not a case where the attorneys’ fees award has been inflated due to overstaffing. Most of the work was completed by two attorneys. In fact, outside of Attorneys Gurewitz and Brewer, the most the Court awarded to any individual was $2,660; and this was primarily for time spent conducting independent legal research. See Dkt. No. 169-3, p. 15 (Pg. ID 4922) (Billing Entry for Attorney Olszewski). Every other attorney received less than $650.
Defendant alternatively argues that the Court should implement a tenpercent across-the-board reduction because Plaintiffs’ billing entries are too vague to allow for adequate review. Dkt. No. 172, p. 26 (Pg. ID 4990). Defendant specifically notes that Attorney Brewer made multiple billing entries for drafting a brief without specifically identifying the document; that Plaintiffs’ attorneys’
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telephone and email communications do not indicate the subject matter of the discussions; and that Plaintiffs’ attorneys lump together several tasks in each billing entry (i.e., block billing), making it impossible to determine how much time was spent on each individual task. See id. at pp. 26-29 (Pg. ID 4990-93).
Again, the examples that Defendant cites do not suggest that Plaintiffs’ attorneys’ fees request is unreasonable. The chronology of this case is quite clear, making it easy to cross-reference any “vague” descriptions in the billing entries with the sequence of events recorded on the Court’s docket. For example, the “unidentified” brief that Attorney Brewer worked on between April 2016 and June 2016 corresponds with the dates during which Plaintiffs were litigating their Motion for a Preliminary Injunction. And though Plaintiffs’ attorneys do lump together individual tasks within each billing entry, they describe the work performed in a manner that is sufficient to assess the reasonableness of the total hours expended. See Smith, 592 Fed. App’x at 371 (“Regarding block-billing, this court has held that so long as the description of the work performed is adequate, block-billing can be sufficient.”). Considering the complexity of this case, the Court finds the amount of time Plaintiffs’ attorneys devoted to litigating these claims within reason. Accordingly, the Court will not reduce the attorneys’ fees award.
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Case 2:16-cv-11844-GAD-MKM ECF No. 181 filed 05/31/19 PageID.5204 Page 24 of 24
IV. CONCLUSION For the reasons stated herein, the Court will GRANT Plaintiffs’ Motion for Attorneys’ Fees and Costs [# 169] IN PART. Plaintiffs are hereby awarded attorneys’ fees and costs in the amount of $530,874.29. IT IS SO ORDERED.

Dated: May 31, 2019

s/Gershwin A. Drain HON. GERSHWIN A. DRAIN United States District Court Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this date, May 31, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern Case Manager

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