Nick Krieger (@nckrieger):
Michigan Attorney General Bill Schuette has asked the United States Court of Appeals for the Sixth Circuit to reconsider en banc the decision of the three-judge panel to deny a stay of the district court's preliminary injunction in Michigan State A. Philip Randolph Institute v. Johnson, the Michigan straight-party voting case. I would just like to make a few observations.
The 15 active judges of the U.S. Court of Appeals for the Sixth Circuit, except any who may be disqualified, are permitted to vote on whether to grant a petition for en banc review. At least in theory, there are more "conservative" active judges on the Sixth Circuit than there are "liberal" active judges (although these labels don't necessarily mean much in any given case).
The judges are guided by certain principles when deciding whether to grant a petition for en banc review:
The Federal Rules of Appellate Procedure state that a petition for en banc review should ordinarily not be granted unless (1) consideration is necessary to maintain uniformity in the court's decisions, or (2) the matter involves "a question of exceptional importance." FRAP 35(a). In this case, en banc review is not necessary to maintain uniformity in the Sixth Circuit's decisions. Thus, the question is whether the proceeding involves an issue of "exceptional importance." While the underlying issue (the Michigan Legislature's implementation of the straight-party voting ban and whether it interferes with the right to vote) could be characterized as "exceptional[ly] importan[t]," the routine decision whether to grant or deny a stay pending appeal almost certainly is not.
Likewise, the Local Rules of the U.S. Court of Appeals for the Sixth Circuit provide in relevant part: "Alleged errors in the determination of state law or in the facts of the case (including sufficient evidence), or errors in the application of correct precedent to the facts of the case, are matters for panel rehearing but not for rehearing en banc." It is clear that the default rule is to deny a petition for rehearing en banc when the petition simply alleges that the three-judge panel has made an error of law or reached the wrong outcome. Something more must be shown. Indeed, former Chief Judge Karen Nelson Moore of the Sixth Circuit has written that "a panel's 'getting it wrong' " is not a sufficient reason to grant a petition for rehearing en banc. Bell v. Bell, 512 F.3d 223, 250 (CA6, 2008) (Moore, C.J., dissenting). Similarly, Judge Jeffrey Sutton of the Sixth Circuit has written that en banc review should be reserved for " 'the rarest of circumstances.' " Mitts v. Bagley, unpublished order of the U.S. Court of Appeals for the Sixth Circuit, issued December 3, 2010 (Docket No. 05-4420) (citation omitted) (Sutton, J., concurring).
If the judges of the Sixth Circuit avoid partisanship and remain faithful to these rules, they will deny Schuette's petition for rehearing en banc. Of course, this is a politically charged case that has come before the court in the middle of a heated election year. So anything is possible. Either way, because of the tight time constraints involved, we should be hearing from the court very soon.