Nick Krieger (@nckrieger):
Last December, the Michigan Legislature narrowly passed Senate Bill 13 (now designated as 2015 PA 268), a bill to eliminate the option of straight-party voting in Michigan elections. Governor Rick Snyder signed the bill into law a few days later.
In July, United States District Judge Gershwin Drain granted a preliminary injunction, enjoining the Michigan Secretary of State from implementing the provisions of PA 268. Among other things, Judge Drain concluded that that the elimination of straight-party voting would lengthen lines at the polls, interfere with voting in urban areas, and disproportionately burden African Americans’ right to vote.
Michigan Attorney General Bill Schuette sought review in the United States Court of Appeals for the Sixth Circuit, asking the court to stay Judge Drain’s preliminary injunction pending appeal. Last week, a three-judge panel of the U.S. Court of Appeals denied Schuette’s request for a stay, effectively leaving in place Judge Drain’s preliminary injunction — at least for the time being.
Now, Schuette has asked the full U.S. Court of Appeals for the Sixth Circuit to reconsider en banc the decision of the three-judge panel. The court has not yet ruled on the petition for en banc review. But given the time constraints involved in this election-law case, we can expect to hear from the court very soon.
Michigan Republicans obviously believe that the elimination of the straight-party voting option will drive down the number of voters in Detroit and other traditionally Democratic urban areas. They also hope the elimination of straight-party voting will give them a better chance to win certain bottom-of-the-ballot contests for the university governing boards and the State Board of Education — contests that typically follow the top of the ticket and are often decided by straight-ticket votes.
One problem for both Republicans and Democrats is that the Legislature’s actions could cause some voters to cast blank ballots and never even realize it.
The Michigan Election Law presently requires the state to print each party’s vignette at the top of the general-election ballot. What is a party vignette? It’s a small picture that is chosen by the state organization of each major political party to represent the party on the statewide ballot. For instance, the Republicans use a picture of Abraham Lincoln and Ronald Reagan. The Democrats have a picture of FDR and JFK.
What is the purpose of these vignettes? For many years, Michigan voters have had the option of casting a straight-party vote — in other words, a vote for every candidate of the voter’s chosen party with one simple mark, punch, or lever flip (depending on the type of ballot used in the locality). The straight-party option has traditionally appeared near the top of the ballot, directly under each party’s vignette. The vignette helps voters identify which column of the ballot belongs to which party for purposes of selecting the straight-ticket option.
When the Legislature decided to scrap the straight-party option last December, it left in place other provisions of the law that require the state to print the party vignettes on the ballot. This has led to a concern that the continued presence of the vignettes might confuse voters, who might simply circle a vignette in a futile attempt to cast a straight-party vote. This concern is shared by certain Democrats and Republicans alike.
As Senior Judge Ronald Gilman of the U.S. Court of Appeals wrote in his concurring opinion: “[T]he 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 . . . .” Earlier this summer, five Republican state representatives introduced House Bills 5723 and 5724, which would remove the party vignettes from the ballot altogether. No action has been taken on these bills, however, and the deadline for printing the November ballots is quickly approaching. Therefore, it appears that the party vignettes will remain on the ballot in Michigan.
If the full U.S. Court of Appeals decides to review the three-judge panel’s decision and stay Judge Drain’s preliminary injunction, there will be no straight-party option on this November’s ballot. This could cause certain voters to become confused, circle a vignette, and thereby cast a blank ballot. (A very reliable source informs me that although certain county clerks program their tabulating machines to question or reject ballots that are left completely blank, other county clerks program their machines to accept blank ballots.) If for no other reason than to promote clarity and reduce voter confusion (and maybe for these reasons, too), the U.S. Court of Appeals for the Sixth Circuit should deny Schuette’s petition for en banc review and allow the decision of the three-judge panel to stand.