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1 Case: Document: 53-1 Filed: 09/01/2016 Page: 1 (1 of 27) Nos /2115 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, ET AL., v. Plaintiffs-Appellees, RUTH JOHNSON, IN HER OFFICIAL CAPACITY AS MICHIGAN SECRETARY OF STATE, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) O R D E R MOORE, J. (pp. 2 4; app. 5 17) delivered a concurrence to the court s denial of initial hearing en banc, in which WHITE and STRANCH, JJ., joined. BOGGS, J. (pp ; app ), delivered a dissent to the court s denial of initial hearing en banc, in which BATCHELDER, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. KETHLEDGE, J. (pg. 26), delivered a dissent to the court s denial of initial hearing en banc. The court received a petition for initial hearing en banc. The petition was circulated to all of the active judges of the full court. Less than a majority of the active judges voted in favor of initial hearing en banc. Therefore, the petition for initial hearing en banc is denied. ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk

2 Case: Document: 53-1 Filed: 09/01/2016 Page: 2 (2 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 2 CONCURRENCE KAREN NELSON MOORE, Circuit Judge, concurring in the denial of initial hearing en banc. The panel assigned this case promptly considered the motion for a stay and denied a stay pending appeal of the district court s preliminary injunction. See Appendix Mich. State A. Philip Randolph Inst. v. Johnson, No , 2016 WL (6th Cir. Aug. 17, 2016). This case has received expedited treatment: it was appealed on July 25 and immediately assigned to a merits panel. The State did not file its emergency motion to stay until August 10, but received a decision on August 17, as it had requested. The State then filed a petition for an initial hearing en banc on August 18. After consideration by all active Sixth Circuit judges, initial hearing en banc was not granted. Upon expedited merits briefs from the parties, the panel will proceed promptly to consider the appeal of the preliminary injunction. As explained in the attached panel opinions on the stay, the preliminary injunction keeps in place the law of Michigan for the past 125 years allowing straight-party voting. On two prior occasions (in 1964 and 2001), the people of Michigan rejected by referendum the efforts of the legislature to eliminate this practice begun in A referendum by the people regarding Michigan s most recent legislative enactment, Public Law 268, is not allowed under state law only because an appropriation of $5 million was attached to the legislation. The district court granted the preliminary injunction to preserve the 125-year status quo, finding that the plaintiffs were likely to succeed in their challenge to Public Act 268 based on the burden imposed on voters particularly African-American voters in violation of the Equal Protection Clause of the U.S. Constitution and section 2 of the Voting Rights Act, 52 U.S.C In light of the

3 Case: Document: 53-1 Filed: 09/01/2016 Page: 3 (3 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 3 record developed in the district court, both the district court and this Circuit have denied a stay pending appeal. A majority of the active judges has denied initial hearing en banc. This comports with our usual and established practice in election cases of allowing the panel to consider the merits of an appeal before involving the en banc court. See, e.g., Ohio Democratic Party v. Husted, No (Order Denying Initial Hearing En Banc, June 20, 2016) (denying State of Ohio s petition for initial hearing en banc). Particularly here, where the panel has denied a stay pending appeal, and then the Secretary filed a petition for initial hearing en banc, the Secretary is essentially seeking en banc review of our panel opinions denying the Secretary s motion for a stay pending appeal. This is a clear attempt at an end-run around our Sixth Circuit I.O.P. 35(h), which directs that petitions for rehearing en banc from an order denying a motion for a stay be circulated only to the panel judges, not to the en banc court. As the panel explained in our opinions denying the Secretary s motion for a stay pending appeal, [t]his case does not involve the potential disruption of complicated electionadministration procedures on the eve of Election Day. Mich. State A. Philip Randolph Inst. v. Johnson, --- F.3d ----, 2016 WL , at *8 (6th Cir. Aug. 17, 2016). Rather, the district court s preliminary-injunction order merely require[s] Michigan to use the same straight-party procedure that it has used since Id.; see also id. at *9 (Gilman, J., concurring) ( [U]nlike the potential disruptions in other cases that involve voter-identification requirements or the elimination of early voting, I see no grave harm to the state of Michigan in allowing straightparty voting to remain on the ballot this November, as it has for the past 125 years. ). Further, as both the majority and concurring opinions addressed in our opinions denying the Secretary s motion for a stay, [t]he Secretary presented no testimony or expert reports in the

4 Case: Document: 53-1 Filed: 09/01/2016 Page: 4 (4 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 4 district court to counter [the plaintiffs ] facts. Mich. State A. Philip Randolph Inst., 2016 WL , at *5; see also id. at *9 (Gilman, J., concurring) ( [T]he Secretary, for whatever reason, did not timely submit any proof contradicting the plaintiffs evidence. ). The evidence that was presented to the district court demonstrated that the elimination of straight-party voting would cause longer lines at polling places, particularly in areas where straight-party voting was disproportionately utilized, and that these lines would deter voters from voting. R (Swope Decl. at 4) (Page ID #297). The uncontradicted evidence also demonstrated that the elimination of straight-party voting was likely to cause confusion and result in miscast ballots. See R (Rozell Decl. at 5 6) (Page ID #284 85). On the basis of this evidence and without any contrary expert or lay testimony from the Secretary the district court imposed a preliminary injunction that would maintain the same straight-party voting procedure that has existed in Michigan since Upon return of jurisdiction to the panel, expedited briefing on the merits will be ordered and a prompt decision will follow.

5 Case: Document: 53-1 Filed: 09/01/2016 Page: 5 (5 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 5 APPENDIX TO CONCURRENCE

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18 Case: Document: 53-1 Filed: 09/01/2016 Page: 18 (18 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 18 DISSENT BOGGS, Circuit Judge, dissenting from denial of initial hearing en banc. This case began with a district court issuing a preliminary injunction outlawing Michigan s change to an office-block ballot system, requiring a separate mark for each office, from one that allowed a vote for all candidates of a given party with one mark. Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2016 WL (E.D. Mich. July 21, 2016). The will of Michigan s people, expressed through their legislature, was to have the same system as the large majority of states, containing the large majority of voters, of all types of races and parties. This type of radical departure, imposed in the midst of a national campaign season, has frequently been stayed in similar circumstances, to allow time for full appellate consideration before judicial action that would affect the political process. In many cases, the Supreme Court has made an ultimate decision, either to stay, or not stay, a lower-court decision that would affect the electoral process. In this case, partly as a result of our local Sixth Circuit practice, it has become exceedingly difficult to get this issue into a position for such consideration. A panel of our court refused to stay the district-court decision, as did the district court itself. Mich. State A. Philip Randolph Inst. v. Johnson, No , 2016 WL (6th Cir. Aug. 17, 2016); Mich. State A. Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2016 WL (E.D. Mich. Aug. 15, 2016). Under our procedures, such a panel decision is not subject to review by the full court, as would be the case with most decisions of a three-judge panel. See 6 Cir. I.O.P. 35(h).

19 Case: Document: 53-1 Filed: 09/01/2016 Page: 19 (19 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 19 In any event, with no permanent order entered, the state s option was to appeal the district court s preliminary injunction, which it did, and it then asked for an initial hearing en banc, presumably in an effort to expedite consideration, which would otherwise be in the hands of a panel of our court in the regular order, only eventually subject to en banc consideration. I requested a vote on that motion, believing that the most expeditious way for a final result on this issue was for the whole court to consider the issue, hopefully to issue a stay that would allow for full consideration of this (in my view) erroneous decision without the radical step of affecting the current election. A summary of my views on the errors of this attack on the voting system used in most of the country is attached as an appendix. In the event, less than a majority of the judges in active service (see Fed. R. App. P. 35) supported that motion, so the case will remain in the hands of the duly selected panel, which will rule in whatever time it chooses. In my view, this has the unfortunate effect that the circuit has taken no action that can be presented to the Supreme Court, such as by review of a merits decision, or of the grant of a stay. The only avenues now open for a Supreme Court ruling in time to avoid the lower courts affecting the election are either to seek a stay of the district court s order from the Supreme Court, even while the merits of the district court s order are still pending before our merits panel, see, e.g., Ashcroft v. N. Jersey Media Grp., Inc., 536 U.S. 954 (2002) (mem.); Heckler v. Lopez, 463 U.S. 1328, 1328 (Rehnquist, Circuit Justice 1983), or the quite unusual step of seeking certiorari before judgment. See 28 U.S.C. 1254(1); Sup. Ct. R. 11. I therefore dissent from the denial of initial hearing en banc.

20 Case: Document: 53-1 Filed: 09/01/2016 Page: 20 (20 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 20 APPENDIX TO DISSENT I believe that the district court erred in both the facts and the law when outlawing a practice common throughout the country and a commonplace subject of political and politicalscience debate, not racial impact. The gravamen of the district court s holding, that a switch to a simple office-block voting method as opposed to one including a straight-ticket option violates both the Constitution and the Voting Rights Act, is that it might take some voters a bit longer to fill out their ballots than they would otherwise and that there is a racially disparate impact from that format. To begin with, ballot formats have varied throughout our history. Originally, parties printed and provided ballots containing only their candidates, which voters could simply deposit in the ballot box. That was certainly a very fast and easy way to vote, and often favored even today in one-party countries. However, beginning around 1880, most states introduced government-printed ballots containing all candidates, and a secret ballot. Alan Ware, The American Direct Primary (2002). That certainly slowed down the voting process, but provided a variety of benefits. The general encouragement of one-party voting was thought to discourage thoughtful consideration of each office. For better or worse (and the issue has been contested and discussed by academics for a century), that impulse led a number of states, beginning with Massachusetts in 1888, to adopt the office-block (or Massachusetts ) ballot, where candidates were grouped by office, rather than party. See Arthur Ludington, Present Status of Ballot Laws in the United States, 3 Am. Pol. Sci. Rev. 252, 257 (1909). The shift was intended to make the voters stop and think about each office in turn, and to move away from

21 Case: Document: 53-1 Filed: 09/01/2016 Page: 21 (21 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 21 straight-ticket voting. Id. at This change was advocated by the Progressive movement in the early twentieth century, and was considered a good-government policy that provided at least a nudge (in the words of Professor Cass Sunstein) for consideration of the merits of each candidate. See Benjamin Parker De Witt, The Progressive Movement 210 (1915). Forty states other than Michigan have voting methods that do not permit straight-ticket voting, 1 including such Democratic-leaning states as Massachusetts, California, New York, and Washington State. Rhode Island, which like Michigan lacks early voting and no-excuse absentee voting, similarly banned straight-ticket voting in Act of July 1, 2014, 2014 R.I. Pub. Laws chs. 279, 280. As a logical matter, the office-block system without straight-ticket voting is often favored by whichever party is in the general minority in an area, hoping that some of its candidates may prevail if voters can be nudged to consider their individual merits, against a generally adverse party tide. The only challenge to this system (other than ours) failed when a Wisconsin district court that found constitutional and Voting Rights Act violations in many other sections of newly passed Wisconsin elections laws upheld the straight-ticket ban. One Wis. Inst., Inc. v. Thomsen, 2016 WL , at *39 40, *49 50 (W.D. Wis. 2016). At any rate, the district court determined that this widespread practice violated the Constitution as an undue burden on all voters right to vote, and violated the Voting Rights Act as a practice that disproportionately burdened racial minorities opportunity to participate in the political process and elect representatives of their choosing. In my view, the opinion has the following flaws: 1 Straight Ticket Voting States, Nat l Conf. St. Legislatures (Jan. 8, 2016),

22 Case: Document: 53-1 Filed: 09/01/2016 Page: 22 (22 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 22 The opinion rests on two factual premises that minorities are more likely to vote straight-ticket, and that there is a very substantial increase in the time required to vote, for many voters, in absence of the straight-ticket format, leading to many alleged evils. As to the second, although one elections clerk s unsupported estimation suggested that the elimination would increase the time required to vote by six minutes, Rozell Decl. at 4, this seems most improbable. From the record, many or most ballots in Michigan may require in the vicinity of seventy marks, if the voter wishes to exercise all voting rights. The absence of straight-ticket voting might require, depending the county, about seventeen additional marks. See Baxter Decl. at 3. For a determined straight-ticket voter, any increase might well be under one minute. Even more importantly, there was no consideration of how this would actually slow down the overall process. As discussed by the MIT study cited by the court, there can be three major sources of delay in the voting process. The first is the time to check in, sign a register, and receive a ballot. The ballot format has no effect on this process. The second is taking the ballot to a secret booth, and marking the ballot. The third is taking the ballot to a particular location, in Michigan usually an electronic tabulating machine, and feeding the ballot into the machine. And the time the voter takes to mark ballot is not sequential. That is, the voting areas provide many small booths, where many voters can be marking their ballot simultaneously. Unless there was evidence, and I saw none, quantifying that in general the bottleneck is at the booths rather than the check-in desks, and lines form to use them, then the format has no effect at all. And if some voters in fact take more time to consider and choose candidates individually, then that is a feature, not a bug, and not illegal.

23 Case: Document: 53-1 Filed: 09/01/2016 Page: 23 (23 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 23 As to the first, the alleged expert report emphasizes that in the nine counties he chose to analyze (out of Michigan s eighty-three), there was some correlation with more prevalent straight-ticket use in minority areas. It is important to note that, in contrast to many election cases (cf. Ne. Ohio Coalition for the Homeless v. Husted, No. 2:06-cv-896, 2016 WL , at *47 (S.D. Ohio June 7, 2016)), he made no effort to assess or control for the effects of factors such as income, education, etc. A casual inspection of the data presented in the Metzger Report would indicate that straight-ticket voting is more prevalent in areas that may have lower education and income levels, and less prevalent in the reverse. For instance, in Wayne County, most of the lowest straight ticket numbers are in the various Grosse Pointe districts, generally noted for higher income and education levels. Metzger Report App. A, at 8. On the other hand, by omission or design, he did not analyze the whole state. Michigan notes that there are very high straight-ticket rates in Ottawa County, the most Republican county in the state in 2012 and an overwhelmingly nonminority area. Emergency Mot. for Stay 14; Alexander Kent et al., The Most Republican Counties in Every State, USA Today (Feb. 4, 2016, 5:25 p.m.), QuickFacts Ottawa County, Michigan, U.S. Census Bureau (2015), (The court refused to consider such evidence, but the raw data are in government records of which notice can be taken.) In truth, any area with a very strong tendency to one party or the other will usually have higher straight-ticket rates, while swing areas will have lower. Thus, Democratic-leaning minorities or other voters in Ottawa County may be aided in electing a representative of their choice by the abandonment of straight-ticket voting. The expert took no account of this.

24 Case: Document: 53-1 Filed: 09/01/2016 Page: 24 (24 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 24 In short, a careful consideration of the Anderson-Burdick methodology seems to lead to the conclusion that the minimal impact on length of voting time is well outweighed by the desire (permissible, whether right or wrong as a matter of governance) to increase individual consideration of the candidates for each office and increase voting in nonpartisan elections. 2 As to the Voting Rights Act claim, there appear to be several major flaws. First, it simply is not a reduction of the opportunity to vote or to elect a representative of one s choice when the state uses a uniform method of voting to all voters, even if (assuming the validity of the expert s methodology) a larger number of minorities than nonminorities would prefer a system that was marginally quicker. Every voter can still vote. Every voter has the same opportunity to continue to choose all candidates of the same party, or to split the ticket (formerly considered a good thing, in an age when political polarization is widely lamented). Every voter will have to mark the ballot as many times as desired, which will take the same time for minorities and nonminorities. If the state were to permit straight-ticket voting in majority areas but not in minority areas, that would potentially be a serious violation. But that is not what occurs in Michigan. Finally, the district court appears to have compared the new waiting times against older waiting times in determining any disparate impact. Michigan State A. Philip Randolph Inst. v. Johnson, 2016 WL , at *10 (E.D. Mich. July 21, 2016) ( [V]oter wait times will increase greatly in African-American communities in comparison to other communities. ) (emphasis added). But the question at issue is whether there exists an obstacle to equal 2 Indeed, straight-ticket voting appears to significantly contribute to errors by voters. See Paul S. Herrnson, Michael J. Hanmer & Richard G. Niemi, The Impact of Ballot Type on Voter Errors, 56 Am. J. Pol. Sci. 716, 728 (2012) ( [V]oters who use standard office-bloc ballots make fewer candidate selection errors and fewer total errors than those who use ballots with a straightparty option. ).

25 Case: Document: 53-1 Filed: 09/01/2016 Page: 25 (25 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 25 opportunity at the current time, not based on a change over time (which is characteristic of a Section 5 claim, not a Section 2 claim). Cf. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000). A VRA violation additionally requires a finding that the alleged impact is in some way related to the congeries of Gingles factors. The existence of such factors is not the relevant consideration. A number of the factors alleged to impact minorities desire to vote straight ticket might equally cause nonminorities to do so as well, though in the opposite direction. And as there is no argument that past discrimination causes lower education levels that make minorities incapable of giving individual consideration (a claim I am sure Plaintiffs would be reluctant to make), there is no relation of such factors to the opportunity to vote for and elect a representative of one s choice. In short, the district court s opinion, though placed in the context of Michigan, uses such a jumble of suppositions and assertions that it would very likely apply to the office-block ballot throughout the country, which has been chosen in states that lean in different directions politically and with widely varying proportions of minorities in their electorates.

26 Case: Document: 53-1 Filed: 09/01/2016 Page: 26 (26 of 27) Nos /2115 Mich. State A. Philip Randolph Inst. et al. v. Johnson Page 26 DISSENT KETHLEDGE, Circuit Judge, dissenting from the denial of initial hearing en banc. I would grant the State s petition for the reasons stated in the appendix to Judge Boggs s dissenting opinion.

27 Case: Document: 53-2 Filed: 09/01/2016 Page: 1 (27 of 27) Deborah S. Hunt Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE CINCINNATI, OHIO Tel. (513) Filed: September 01, 2016 Ms. Denise C. Barton Office of the Attorney General of Michigan P.O. Box Lansing, MI Re: Case No / , MI State A. Philip Randolph, et al v. Ruth Johnson Originating Case No. : 2:16-cv Dear Ms. Barton, The Court issued the enclosed Order today in these cases. Sincerely yours, s/beverly L. Harris En Banc Coordinator Direct Dial No cc: Mr. Kevin M. Blair Mr. Mark C. Brewer Mr. John J. Bursch Mr. Adam Lee Spinelli Fracassi Mr. Erik A. Grill Ms. Mary Ellen Gurewitz Ms. Andrea L. Hansen Mr. Joseph Yung-Kuang Ho Mr. John D. Pirich Enclosure