Mich. State A. Philip Rand Inst. v. Ruth Johnson ( 2018 )

NOT RECOMMENDED FOR PUBLICATION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 ) FILED
INSTITUTE; MARY LANSDOWN; ERIN ) Sep 05, 2018
COMARTIN; DION WILLIAMS; COMMON ) DEBORAH S. HUNT, Clerk
CAUSE )
)
Plaintiffs-Appellees, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
RUTH JOHNSON, in her official capacity as )
Michigan Secretary of State )
)
Defendant-Appellant. )
BEFORE: BOGGS, KETHLEDGE, and DONALD, Circuit Judges.
BOGGS, Circuit Judge. This litigation commenced in 2016 with the filing of plaintiffs’
complaint attacking recently passed legislation, PA 268, which eliminated Michigan’s straight-
ticket voting option. PA 268 aligned Michigan with the large majority of states that require voters
to vote individually for numerous partisan offices, rather than allowing them to make one mark to
select a party’s slate for many offices. Discovery was completed by September 29, 2017. The
district judge then conducted a bench trial, though no witnesses were heard. The litigation was
essentially conducted on voluminous documents and depositions.
The district court issued a lengthy opinion on August 1, 2018, enjoining application of the
Michigan law on two constitutional grounds and as a violation of Section 2 of the Voting Rights
Act (“VRA”). Defendants filed a notice of appeal on August 13 and, pursuant to Fed. R. App. P.
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
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.
3
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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
4
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-cv-
11844, 2018 WL 3769326, at *37 (E.D. Mich. Aug. 9, 2018).
The second basic pillar of the district court’s decision is an increase in total wait time.
Once again, the district court’s findings lack rigor. The closest that the court came to providing
even an estimate of the increase in wait time is where it mistakenly stated that Allen “found that
the eradication of straight-ticket voting would increase wait times by 25% or more for every voter
who previously voted a straight-ticket.” Michigan State A. Philip Randolph Inst., 2018 WL
3769326, at *9. The court then repeated this error in its denial of the Secretary’s Emergency
Motion for a Stay Pending Appeal. See Michigan State A. Philip Randolph Inst. v. Johnson, No.
16-cv-11844, 2018 WL 4024895, at *4 (E.D. Mich. Aug. 23, 2018). Allen found no such thing.
5
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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
6
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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.
7
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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:
8
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
Detroit 1-271[:] 13,
Flint[:] 5, and
Saginaw[:] 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 Number of Number of Registered
Booths Voters
Detroit 1-271 15 1,505
Flint 28 1,714
Saginaw 25 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
9
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.
10
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
11
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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
12
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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.
13
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
14
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
15
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.
16
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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
17
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.
18
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, anti-
single 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.
19
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.
20
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.
21
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
22
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.
23
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 African American
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 200-
year battle to get and keep the voting franchise. See Dred Scott v. Sandford, 60 U.S. 393 (1857)
24
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. XVI. 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
25
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 1981, 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, 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.
26
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
27
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
28
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
to 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 characterized 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 emerging 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
manufactured a 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
29
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
30
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 [check-
in] . . . , 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
31
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 Anderson-
Burdick 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
32
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
33
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 African-
Americans 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 African-
Americans are the majority demographic, 77.7% of voters use the straight-party voting option, and
34
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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 straight-
party voting and race by pointing to straight-party popularity in communities, such as Ottawa
county, where African-Americans makeup 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 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 the PA 268 will impose increased wait times
to some degree.
35
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 asscociations that PA 268 would introduce substantial wait times, predicting a “doomsday-
like situation.” Particularly, testimony from the then-Chair of the House of 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 African-
Americans 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
36
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 of amount only a
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
37
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 straight-
party 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
38
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 America 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 states 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 African-
Americans 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
39
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 straight-
party 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
40
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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, 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
the district court’s decision, the majority failed to apply this standard. Rather than showing how
41
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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 has led to the majority’s confusion.
Although, as the majority points out, the jurisprudence regarding a vote-denial claim is 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 vote-
denial 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
causally contributes to the alleged discriminatory impact by affording protected group members
42
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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 poles 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 Gingles v. Thornburg. 478 U.S. 30,
43-45 (1986). The majority then reviewed 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,
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.43
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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.” Thornburg v. Gingles, 478 U.S.
30, 47 (1986). Guided by the Judicial 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 of suceed 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 America Husted, 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
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
44
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 133 (2012). 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 election-
administration procedures on the eve of Election Day; rather, denying the
Secretary’s request for a stay here will merely require Michigan to use the same
straight-ticket procedure that it has used since 1891.
Johnson II, 833 F.3d at 669.
On the contrary, s-taying the district court’s permanent injunction on 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 straight-
party voting pending appeal, any prospective harm suffered by the state is minimal in comparison
to the potential harm suffered by African-American voters in Michigan.2 Finally, the public
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 district court amended its order on August 9, 2018 to merely add a table of
contents, this did not preclude the Secretary from appeals the district court’s decision sooner.
45
No. 18-1910, Mich. State A. Philip Randolph Inst. v Johnson
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 strongly is 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.
46