United States District Court, E.D. Michigan, Southern Division
Michigan State A. Philip Randolph Institute, Mary Lansdown, Dion Williams and Common Cause, Plaintiffs,
Ruth Johnson, in her official capacity as Michigan Secretary of State, Defendant.
OPINION AND ORDER GRANTING PLAINTIFFS' REQUEST
FOR PERMANENT INJUNCTIVE RELIEF
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
States District Court Judge Gershwin A. Drain United States
Magistrate Judge Mona K. Majzoub Opinion and Order Granting
Plaintiffs' Request for Permanent Injunctive Relief
early 2016, Michigan passed Senate Bill (“SB”)
13, which eliminated straight-ticket voting. 2015 Mich. Pub.
Acts 268 (“PA 268”). Plaintiffs Michigan State A.
Philip Randolph Institute, Common Cause, Mary Lansdown, Dion
Williams, and Erin Comartin then sued Ruth Johnson, Michigan
Secretary of State (“the Secretary”) in May 2016.
See Dkt. No. 1. The Plaintiffs raised both
constitutional and statutory claims. See id.
case proceeded to trial, where the Court heard opening
statements and then examined the parties' briefs, along
with the voluminous record.
reasons detailed below, the Court will GRANT Plaintiffs'
request for a permanent injunction on PA 268.
Court cautions that its holdings are specific to this
litigation. The Court's only charge here is to assess the
constitutionality and legality of PA 268 based on the
election laws and the voting patterns of demographics, in
Michigan, as they exist today. The Court appreciates the
“vigilant respect” due to the separation of
powers embodied in the Constitution. Ohio Democratic
Party v. Husted, 834 F.3d 620, 623 (6th Cir. 2016). But
“[f]ederal judicial remedies, of course, are necessary
where a state law impermissibly infringes the fundamental
right to vote.” Id. Such remedies are
necessary in this case, as the Court will explain herein.
History of Straight-Ticket Voting in Michigan
voting a straight-ticket (or straight-party) ballot, Michigan
residents can vote for all the candidates of a given
political party through shading in one oval, as opposed to
voting for each candidate by shading in, say, eighteen ovals.
Dkt. No. 146, p. 2 (Pg. ID 4380); see also Dkt. No.
1-15, p. 9 (Pg. ID 288). Michigan residents must also vote
for nonpartisan offices and proposals, sometimes as many as
thirty- seven nonpartisan offices and eighteen proposals.
Dkt. No. 1-15, p. 9 (Pg. ID 288). The straight-party option
only streamlines voting for partisan offices; Michigan
residents must vote for each nonpartisan office and proposal
1891, Michigan residents have had the option of
straight-ticket voting. 1891 Mich. Pub. Acts. 190 § 14.
In this 127-year span, Michigan legislators have tried to
abolish the practice three times.
Michigan voters defeated by referendum laws that would have
eliminated straight-party voting: first in 1964 and second in
2001. See 1964 Mich. Pub. Acts. 240; 2001 Mich. Pub.
Acts. 269. On both occasions, voters demonstrated an
overwhelming preference for keeping straight-ticket voting.
Michigan voters repealed 1964 PA 240 by a vote of
approximately 66% (1, 515, 875) to 34% (795, 546). Dkt. No.
146, p. 2 (Pg. ID 4380). And they repealed 2001 PA 269 by a
vote of roughly 60% (1, 775, 043) to 40% (1, 199, 236).
Id. at p. 3 (Pg. ID 4381).
third attempt at eliminating straight-ticket voting occurred
in December 2015, when the Michigan Legislature passed SB 13.
Id. Governor Rick Snyder signed the bill into law on
January 5, 2016 and it became effective immediately. Dkt. No.
102-8, pp. 2 (Pg. ID 2083). SB 13 was enrolled as PA 268.
Id.; see also Dkt. No. 146, p. 3 (Pg. ID
4381). PA 268 includes a $5 million appropriation for
“purchas[ing] voting equipment to implement the
elimination of straight party ticket
voting.” PA 268, Sec. 795c. (2). This appropriation
is for the purchase of voting booths, which can cost just
$15. Dkt. No. 147, pp. 34-35 (Pg. ID 4449-50). The
appropriation has additional significance: it prevents a
referendum on PA 268-and referenda had undone previous laws
eradicating straight-party voting. See Mich.
United Conservation Clubs v. Sec'y of State, 630
N.W.2d 297, 298 (Mich. 2001).
of this litigation, PA 268 has yet to cover an election. On
May 27, 2016, five months after PA 268 had become law, the
Plaintiffs requested a preliminary injunction prohibiting the
Secretary from implementing PA 268. Dkt. No. 4. In requesting
the preliminary injunction, the Plaintiffs alleged that PA
268 violates the Equal Protection Clause and Section 2 of the
Voting Rights Act (“VRA”). And on July 22,
2016, the Court granted Plaintiffs' request, finding that
PA 268 likely violated the Equal Protection Clause and
Section 2 of the VRA. See Johnson I, 209 F.Supp.3d
935; see also Dkt. No. 30.
on August 15, 2016, this Court denied the Secretary's
motion to stay the preliminary injunction pending appeal.
See Mich. State A. Philip Randolph Inst. v.
Johnson, No. 16-cv-11844, 2016 WL 4267828 (E.D. Mich.
Aug. 15, 2016). Two days later, the Sixth Circuit denied the
Secretary's motion for a stay pending appeal of this
Court's orders granting the Plaintiffs' motion for a
preliminary injunction. See Mich. State A.
Philip Randolph Inst. v. Johnson, 833 F.3d 656 (6th Cir.
2016) (“Johnson II”).
October 16, 2017, the Secretary moved for summary judgment.
Dkt. No. 102. As the Court denied the Secretary's motion,
this case proceeded to trial. See Mich. State A.
Philip Randolph Inst. v. Johnson, No. 16-cv-11844, 2018
WL 493184, at *1 (E.D. Mich. Jan. 19, 2018) (“Johnson
Passage of SB 13
State Senator Marty Knollenberg, a Republican, introduced SB
13 in January 2015. Dkt. No. 146, p. 5 (Pg. ID 4383). When
Knollenberg introduced the bill, he did not have sufficient
votes for its passage. Dkt. No. 137-4, pp. 6-7 (Pg. ID
3270-71). In seeking votes, he relied on others, including
Ronna Romney McDaniel and Ronald Weiser. Id.
McDaniel became chairperson of the Michigan Republican Party
in February 2015, one month after Knollenberg introduced the
bill. Dkt. No. 146, p. 5 (Pg. ID 4383). Weiser, on the other
hand, held no public office or official role in the
Republican Party during this period. Id. at p. 6
(Pg. ID 4384). But he was chairperson of the Michigan
Republican Party from 2009 to 2011 and holds that position
explained his reliance on McDaniel, saying “I needed
some help getting some votes and [McDaniel] knows people, so
you know, she, I assume, went out and talked to folks. I
don't know who, but I needed more votes. . . . And so,
she was helping me get votes.” Dkt. No. 137-4, p. 6
(Pg. ID 3270). McDaniel helped Knollenberg obtain votes by,
for example, connecting Knollenberg with Weiser. See
Id. at pp. 19-20 (Pg. ID 3283-84).
Knollenberg kept McDaniel informed as to his communications
with Weiser, as indicated by a March 2015 text message which
Knollenberg sent to McDaniel. Id. According to
Knollenberg, Weiser had confirmed that he was working to
secure the Governor's support for SB 13, and that the
Chair of the Michigan Senate Elections Committee, David
Robertson, would support SB 13 if the Governor confirmed that
he would sign the bill. Id. at p. 19 (Pg. ID 3283).
continued to coordinate with Weiser in the following months.
In May 2015, Weiser emailed Knollenberg asking for “a
whip count, ” or in layman's terms, the No. of
Michigan Senators who would support SB 13. Id. at p.
21 (Pg. ID 3285). Knollenberg replied “I will work on
it ASAP.” Id.
connecting Knollenberg with political operatives, McDaniel
worked to pass SB 13 by seeking Republican lawmakers'
support for the bill. For instance, she urged Robertson and
Lisa Posthumus Lyons, then-Chair of the House Elections
Committee, to support SB 13. Id. at p. 20 (Pg. ID
3284). McDaniel also told Knollenberg that she would speak
with the Governor to secure his approval. Id. at pp.
19-20 (Pg. ID 3283-84).
vigorously supported SB 13 for two reasons: (1) she thought
it would help the Republican Party win elections; and (2) she
believed it was good policy. In her words: “I was party
chair of Michigan, I wanted to win elections. I'm not
going to say that I didn't think that this would help
Republicans win elections, but I also think at the same time
it's very good policy.” Dkt. No. 108-15, p. 7 (Pg.
ID 2632). McDaniel found SB 13 beneficial for the Republican
Party, as “if one party is using [straight-party
voting] more than the other and they're just voting
straight party, then it's hard for that candidate to
break out.” Id. at p. 5 (Pg. ID 2630).
Specifically, she felt that the abolition of straight-ticket
voting would help “down-the-ticket” Republican
candidates, e.g. candidates for school board elections.
Id. at 4-6 (Pg. ID 2629-31). It would allow these
candidates to “break out” by encouraging them to
spend money and resources campaigning instead of depending on
top-of-the-ticket candidates for their election, according to
claimed her father was a “perfect example” of a
Republican down-the-ticket candidate who would have benefited
from SB 13. Id. at p. 6 (Pg. ID 2631). McDaniel said
her father was “the top Republican vote getter”
in 2008 for a seat on the Michigan State University Board of
Trustees. Id. But, McDaniel lamented, “he lost
statewide because every Republican lost statewide because
Obama was a juggernaut.” Id. That is, McDaniel
believed that many people voted a straight-ticket for the
Democratic Party because of former President Barack Obama and
“[that] impacted the ballot all the way down.”
Id. From her perspective, SB 13 would prevent strong
straight-ticket support of a Democratic Party presidential
candidate from ruining down-the-ticket Republican
candidates' chances for election. And in that way,
McDaniel considered that the law would assist the Republican
Party at the expense of the Democratic Party.
McDaniel considered SB 13 good policy. She said it would aid
the public by encouraging voters to assess each candidate
individually. Id. As summarized by the Michigan
Senate Fiscal Agency, McDaniel's theory supposes that,
“[w]ithout the option of straight-ticket voting, people
might be encouraged to educate themselves about the
prospective office-holders, their qualifications, and what
they stand for.” Dkt. No. 102-7, pp. 3-4 (Pg. ID
understood SB 13 as good policy despite her knowledge of
concerns that it would increase wait times at voting
precincts. Dkt. No. 108-15, p. 5 (Pg. ID 2630). In response
to these concerns, “[she] assume[d] the legislature
addressed those issues.” Id. Regardless, she
said, “[any increase in wait times] was not, from a
[Republican] [P]arty perspective, something in our
SB 13 in the Michigan Legislature and Governor's
Michigan Legislature resumed the official legislative process
for SB 13 on November 10, 2015. Dkt. No. 146, p. 7 (Pg. ID
4385). Immediately, elections officials conveyed an
unequivocal fear that PA 268 would make wait times not only
much longer, but also unmanageable.
November 10, 2015, the Gaines Township Clerk, Crystal
Osterink, emailed Lyons regarding SB 13. Dkt. No. 137-3,
pp. 29-30 (Pg. ID 3253-54). Osterink expressed a “grave
concern” about the longer lines and wait times that SB
13 would cause. Id. at p. 29 (Pg. ID 3253). She
complained that lines were already too long, predicting that
even if straight-party voting were available in the
then-forthcoming 2016 general election, wait times would be
at least thirty minutes. Id. According to Osterink,
“it would take a voter much, much longer to vote a
ballot where each individual candidate (even within their
party choice) had to be selected[.]” Id. She
declared “I cannot imagine the lines, the complaints,
the media attention (remember Grand Rapids several years ago)
if people would have to wait in a longer line than they have
the Kent County Clerk, Mary Hollinrake, emailed Lyons on
November 12, 2015 claiming that “[Michigan Senators]
have NO idea what impact [SB 13] will have on election
night.” Id. at p. 31 (Pg. ID 3255). Because of
the high No. of proposed ballot measures, Hollinrake
explained, voters would have to complete two ballots (each
18-22” long and 8-9¾” wide, allowing for
three columns of positions and ballot proposals on both
sides). Id.; see also Dkt. No. 56, p. 10
(Pg. ID 1101). The incredibly long ballots, combined with the
elimination of straight-ticket voting, would result in
“disaster” in certain areas, she proclaimed. Dkt.
No. 137-3, p. 31 (Pg. ID 3255).
shared Hollinrake's concern, as demonstrated by a text
message she sent to Bill Zaagman on November 20, 2015.
See Id. at p. 36 (Pg. ID 3260). Zaagman was
a spokesperson and lobbyist for the Michigan Association of
County Clerks and the Michigan Association of Municipal
Clerks. Id. In that November 2015 text, Lyons wrote
“are you making sure all your clerks are telling house
members that straight ticket elimination is a nightmare
without secure [sic] no reason absentee voting?”
himself was troubled by the anticipated impact of SB 13 on
Michigan voters. In a draft distribution dated November 19,
2015, he encouraged clerks to pressure their state
representatives to reject the bill, saying that “SB 13
will cripple [clerks'] precincts[.]” Dkt. No.
102-22, p. 2 (Pg. ID 2255). In addition, in proceedings in
the House, both the Michigan Association of Municipal Clerks
and Michigan Association of County Clerks testified in
opposition to SB 13. Dkt. No. 108-13, p. 6 (Pg. ID 2621).
contrast, only two clerks have backed the elimination of
straight-party voting. See id.; Dkt. No. 141-14. The
Elections Clerk of Calhoun County, Michigan, Anne Norlander,
is the only clerk to have submitted an affidavit in this case
supporting PA 268. Dkt. No. 141-14. She agrees with McDaniel
that PA 268 will encourage voters to be “more
informed” about candidates. Id. at p. 4 (Pg.
ID 3983). She also asserts that the elimination of
straight-party voting will motivate voters to prioritize
candidates rather than political parties. Id. The
only other clerk to have supported PA 268 is the clerk of
Clinton Township in Macomb County. Dkt. No. 108-13, p. 6 (Pg.
ID 2621). That clerk submitted a letter advocating for PA 268
during the House hearings. Id.
November 10, 2015, a Senate committee held an hour-long
hearing on SB 13 and voted it out of the committee. Dkt. No.
146, p. 7 (Pg. ID 4385); see also Dkt. No. 108-12,
p. 13 (Pg. ID 2613). The full Senate held a hearing on the
bill that same day. Dkt. No. 146, p. 7 (Pg. ID 4385);
see also Dkt. No. 108-12, p. 13 (Pg. ID 2613). In
that hearing, several Senators criticized the appropriation
for additional equipment, which at that time was set at $1
million. See Dkt. No. 108-12, p. 14 (Pg. ID 2614).
Senator Curtis Hertel Jr. said “[t]his appropriation is
a $1 million insurance policy against the will of the people.
The only reason to add the appropriation to this bill is to
go around the voters and make it referendum-proof.”
Id. Then-Senator Steve Bieda likewise stated that
“I find it really appalling that we have a provision in
there for an appropriation to make it referendum-proof. We
know why that is being done. You know why that is being
done.” Id. “[T]he only reason to [enact
SB 13] is a perceived partisan advantage, ” former
Senator Bieda said. Id.
these statements, the full Senate passed SB 13 on November
10, 2015, and next sent it to the House. See
Id. at p. 13 (Pg. ID 2613); Dkt. No. 146, p. 7 (Pg.
ID 4385). The House Elections Committee evaluated the bill
over two days, December 3rd and 8th of 2015. Dkt. No. 146, p.
10 (Pg. ID 4388). The first day included testimony from
Senator Knollenberg, the bill's sponsor. Knollenberg
explained his motivation for the bill, testifying that:
[t]o those in countries who don't have the right to vote,
I assume how long it takes to vote isn't on their list of
concerns. . . . It is time that Michigan's elections
process becomes more about people, less about political
parties, and even less about how long it takes to exercise
one of our most fundamental rights.
Elections Hearings, Michigan House of Representatives Video
Archive 20:39- No. 20:46, 20:55-21:05, (December 3, 2015),
responded to clerks' anxiety about increased wait times
and longer lines, first by testifying that the appropriation
for voting equipment was intended to address those worries.
Id. at 20:21 to 20:24. Second, he again dismissed
concerns that PA 268 would generate impossibly long lines. He
said “to those individuals [in third world countries]
that can't vote, they just want to be able to vote,
regardless of how long it takes to vote. In those countries
where they've been able to vote for the first time,
they'll wait all day.” Id. at 21:49 to
second day of testimony, the House Elections Committee voted
SB 13 out to the full House. Dkt. No. 146, p. 10 (Pg. ID
4388); see also Dkt. No. 108-13, p. 2 (Pg. ID 2617).
The full House passed the bill on the following day, December
9, 2015, and did so largely along party lines. Dkt. No. 146,
p. 12 (Pg. ID 4390). All the House Democrats opposed SB 13,
as did four Republicans. Id.
in passing SB 13, the House tied it to a bill authorizing
no-reason absentee voting, House Bill (“HB”)
4724. Id. The House imposed the tie-bar to alleviate
congestion on Election Day. Id.; see also
Dkt. No. 108-13, p. 5 (Pg. ID 2620). Lyons testified that
many legislators in the House, including herself, had backed
HB 4724 because it would have lessened the impact of longer
lines and wait times caused by SB 13. Dkt. No. 137-3, p. 36
(Pg. ID 3260).
opposed no-reason absentee voting because the Republican
Party was not prepared “to train and put people in the
clerk's offices for the extended time period” for
the purpose of “ensur[ing] the Integrity [sic] of the
election.” Dkt. No. 140-2, p. 2 (Pg. ID 3414). Ensuring
the integrity of the election, McDaniel explained, included
poll challenges. Id.
December 16, 2015, the Senate received SB 13, now tied to HB
4724. Dkt. No. 146, p. 14 (Pg. ID 4392). The Senate severed
the tie-bar, passed SB 13 standing alone, and sent it to the
House for approval. Id. The House passed SB 13 on
December 16, 2015, this time without HB 4724.
Governor signed SB 13 on January 5, 2016. See Dkt.
No. 102-8. In signing the bill, he observed that,
“[u]nder SB 13, Michigan joins 40 other states that
require voters to select an individual for each elective
office, rather than simply selecting a political
party.” Id. at p. 2 (Pg. ID 2083). And he
implored the Senate to pass HB 4724. Id. Citing
evidence from the National Conference of State Legislatures,
the Governor wrote that “Michigan is one of only 13
states that does not allow for some form of early or
no-reason absentee voting.” Id. He stressed
that “[u]pdating Michigan's archaic absentee voting
law, and bringing Michigan in line with other states
regarding early, or easier, access to the polls is
Election Laws in Michigan
suggested by Governor Snyder, Michigan has a unique voting
regime. To begin, Michigan ballots include races for many
positions beyond those for the federal or state legislature,
including judicial seats and trustee positions on the boards
of public universities. See Mich. Const. art. VI;
id. art. VIII, § 5. Indeed, in the 2012 general
election, Detroit voters assessed a total of seventy-nine
offices and proposals on the ballot: eighteen partisan
offices, forty-three nonpartisan offices, and eighteen
proposals. Dkt. No. 1-15, p. 9 (Pg. ID 288). The November
2016 general election ballot was not quite as long. There,
Detroit residents voted for at least fifty-five positions.
See id.; see also Dkt. No. 102-17, p. 13
(Pg. ID 2172). That year's ballot included eighteen or
nineteen partisan offices, thirty-seven judicial offices, and
seven school board seats for selection out of sixty-two
candidates. See Dkt. No. 1-15, p. 9 (Pg. ID 288);
see also Dkt. No. 102-17, p. 13 (Pg. ID 2172);
see also Dkt. No. 146, p. 16 (Pg. ID 4394).
except for a limited number of qualified residents, all
Michigan voters must visit the polls on Election Day.
Michigan does not permit early voting or no-reason absentee
voting. See Mich. Comp. Laws § 168.758. A
person can only vote absentee in Michigan if they meet one of
the following narrow criteria:
(a) On account of physical disability, cannot without
another's assistance attend the polls on the day of an
(b) On account of the tenets of his or her religion, cannot
attend the polls on the day of election.
(c) Cannot attend the polls on the day of an election in the
precinct in which he or she resides because of being an
election precinct inspector in another precinct.
(d) Is 60 years of age or older.
(e) Is absent or expects to be absent from the township or
city in which he or she resides during the entire period the
polls are open for voting on the day of an election.
(f) Cannot attend the polls on election day because of being
confined in jail awaiting arraignment or trial.
its prohibition on early voting and restriction on absentee
voting, Michigan has one of the most restrictive voting
regimes in the country. Indeed, thirty-seven states allow
early voting. Absentee and Early Voting, Nat'l
Conference of State Legislatures (Aug. 17, 2017),
Thus, only thirteen states do not allow voters to cast a
ballot in-person prior to Election Day. And twenty-seven
states permit no-reason absentee voting, whereas twenty
states (including Michigan) require a justification.
fourteen states recently eliminated straight-ticket
voting. Yet eleven of these fourteen states permit
early voting. Id. Of these fourteen states, only
Michigan, New Hampshire, and Missouri do not allow early
nine of these fourteen states have authorized no-reason
absentee voting; only Michigan, Missouri, New Hampshire,
Texas, and West Virginia do not allow no-reason absentee
voting. In sum, of the fourteen states that have recently
eliminated straight-ticket voting, Michigan is one of only
three states-along with Missouri and New Hampshire-to not
have authorized both early voting and no-reason absentee
voting. Michigan, on the other hand, is one of nine states to
allow straight-ticket voting. Id.
most Michigan voters must attend the polls on Election Day,
Michigan law includes measures intended to alleviate
congestion at the polls. For example, voting precincts can
include no more than 2, 999 voters. See Mich. Comp.
Laws § 168.661. Any precinct with more than 1, 000
voters must have at least one voting machine for every 600
active registered voters, and polls are open from 7:00 a.m.
to 8:00 p.m. See id.; see also Dkt. No.
147, p. 42 (Pg. ID 4457).
administrative measures have not stemmed long lines and wait
times in Michigan, however. A 2012 national study concluded
that Michigan voters had the sixth longest average wait time,
which was almost twenty minutes. Dkt. No. 146, p. 18 (Pg. ID
4396); see also Dkt. No. 1-3, p. 44 (Pg. ID 78). A
former chair of the House Elections Committee offered
anecdotal support for that study, testifying that
“sometimes you would hear of long line issues, even
with straight-party voting.” Dkt. No. 137-3, p. 14 (Pg.
of its narrow exception for qualified absentee voters, its
decision not to authorize early voting, and its extremely
long ballots, Michigan has a restrictive voting scheme.
Findings of Fact
Impact of PA 268 on Michigan Voters
context of Michigan's particular election laws, the Court
finds that PA 268 will increase wait times for all Michigan
voters. It is self-evident that shading in eighteen ovals
will take much longer than shading in one oval. But through
election officials' testimony and affidavits, and expert
reports, Plaintiffs have proven that PA 268 will introduce
significantly greater wait times and dramatically longer
as detailed above, almost every elections clerk who has
commented on PA 268 has concluded that the law will have
these effects. And other elections officials share elections
clerks' concerns. For instance, Christopher Thomas held
those views, and he was the Director of the Michigan Bureau
of Elections for thirty-six years. Thomas, in conjunction
with Bureau of Elections staff, estimated that it takes three
minutes longer to shade in an oval for each individual
partisan candidate than to shade in one oval. Dkt. No.
141-19, p. 2 (Pg. ID 4049). An additional three minutes for
each straight-ticket voter would drastically increase voting
times: 1.5 to 2.5 million Michigan residents voted a
straight-ticket in the 2016 general election. Dkt. No.
108-13, p. 7 (Pg. ID 2622).
Thomas, Joseph Rozell, the Director of Elections in Oakland
County, noted that voting with a straight-ticket is
“easier and faster” than voting for each
candidate individually. Dkt. No. 1-15, pp. 2-3 (Pg. ID
281-82). Daniel Baxter, the Director of Elections in Detroit,
and Chris Swope, the Lansing City Clerk, agreed with
Rozell's assessment. Id. at p. 8, 16 (Pg. ID
287, 295). The lay evidence here, then, strongly indicates
that PA 268 will generate significantly longer lines and wait
addition, particularly convincing are the conclusions and
testimony offered by Plaintiffs' expert Theodore Allen,
an associate professor of Industrial Engineering at Ohio
State University. Dkt. No. 108-4, p. 3 (Pg. ID 2490). Allen
analyzed voting patterns during the 2016 presidential
election at thirty-one precincts in Michigan, precincts which
Plaintiffs' demography expert, Kurt Metzger, identified
as representative of Michigan as a whole. Id.;
Dkt. No. 141-8, p. 36 (Pg. ID 3712). Allen examined data
compiled by volunteers who observed the polls at these
thirty-one precincts. Dkt. No. 141-8, pp. 34-38 (Pg. ID
3710-14). Of the thirty-one precincts, African-Americans
outnumbered other demographics in only five precincts, but
were not a majority in any of these precincts. Dkt. No.
108-4, pp. 6, 8 (Pg. ID 2493, 2495). These five precincts
were in either Detroit, Flint, or Saginaw. Id.
simulated the amount of time it would take for people to vote
with or without a straight-party option. Id. at p. 8
(Pg. ID 2495). To create this simulation, he altered the data
in two important ways. Id. at p. 11 (Pg. ID 2498).
First, in seven precincts he added voting booths to account
for additional resources, like desks, which enabled voting
but were not voting booths. Id. at p. 6 (Pg. ID
2493); see also Dkt. No. 141-8, pp. 41-42 (Pg. ID
3717-18). Second, he subtracted the number of voting booths
observed at certain polling places to identify only those
booths used in a particular precinct. Dkt. No. 108-4, p. 6
(Pg. ID 2493); see also Dkt. No. 141-8, pp. 41-42
(Pg. ID 3717-18). Allen made this adjustment because some
polling places encompassed several precincts, and the data
reflected the number of voting booths at only the location
level. No. 108-4, p. 6 (Pg. ID 2493); see also Dkt.
No. 141-8, pp. 41-42 (Pg. ID 3717-18).
according to Allen, there are three components to voting:
registration, voting booths, and tabulators, where voters
scan ballots. Dkt. No. 108-4, p. 9 (Pg. ID 2496). And one of
the three stages of voting often serves as the principal
cause of wait times, or “bottleneck.”
Id. He contends that the voting booth is most
frequently the bottleneck. Id. Consequently, Allen
omitted the other voting stages from the simulation and
stated that this change did not affect the results.
on this data, Allen reached several important conclusions. He
found that the eradication of straight-ticket voting would
increase wait times by 25% or more for every voter who
previously voted a straight-ticket. Id. at p. 10
(Pg. ID 2497). As an example of the time saved with
straight-party voting, he noted that Flint residents waited
an average of fifty-two minutes to vote and had a ballot
comprised of fifteen partisan races, twelve nonpartisan
races, and nine proposals. Id. Allen then determined
that PA 268 might increase wait times by more than 33%, as
illustrated by this Flint example. Id.
Allen was able to both evaluate a representative sample of
Michigan voting precincts and create a simulation based on
that representative sample, the Court finds that his
conclusions are persuasive. Indeed, Allen's findings
likely reflect the impact of PA 268, given the high number of
partisan elections on Michigan ballots, which Michigan voters
would have to shade in individually with the implementation
of PA 268.
Secretary contends that PA 268 will not increase waiting
times and, in making this argument, she largely relies upon
expert reports authored by Stephen Graves and Paul Herrnson.
The Court will give these expert reports some weight, but
will ultimately conclude that the balance of the evidence
weighs in favor of the Plaintiffs. First, the Secretary's
expert Stephen Graves is a Professor of Management at the
Massachusetts Institute of Technology and he specializes in
the disciplines of operations management, supply chain
management, and manufacturing systems. Dkt. No. 102-5, p. 2
(Pg. ID 1933). Graves's analysis is credible, although
not particularly persuasive.
agrees with Allen that there are three processes relevant to
voting. Id. at p. 6 (Pg. ID 1937). Unlike Allen,
Graves determined that waiting times in Michigan were almost
solely caused by bottlenecks at registration. Id. at
p. 5 (Pg. ID 1936). In other words, he believes that
Allen's data shows that voting booths were generally
available when voters were ready to use them. Therefore, in
Graves's estimation, any increase in time spent in voting
booths because of PA 268 would not increase voting wait times
also attacked Allen's methods. He supposed that Allen
arbitrarily reduced the number of voting booths at the three
most congested precincts (Saginaw, Flint, and one in
Detroit), which were precincts where African-American voters
outnumbered other demographics. Id. at pp. 15-16
(Pg. ID 1946-47); see also Dkt. No. 108-4, pp. 6-7
(Pg. ID 2493-94).
first finding warrants some weight, as Allen concedes that
bottlenecks occur at voting registration, not just at voting
booths. Yet it is unlikely that backups at registration are
the sole cause of all the delay at voting precincts
throughout Michigan-delay which amounts to the sixth longest
wait time in the country. See Dkt. No. 1-3, p. 44
(Pg. ID 78).
assuming that Graves is correct that voters only wait at
registration, this will change under PA 268. Allen concludes
that the eradication of straight-ticket voting will cause
straight-ticket voters-1.5 to 2.5 million Michigan
residents-to use 25% more time in voting booths. PA 268,
then, will significantly impact the amount of time it takes
for a large number of residents to vote. Accordingly, voting
booths will not be as readily available with PA 268 as Graves
contends that they are today.
Graves convincingly undermines Allen's data by
highlighting that Allen may have eliminated booths in certain
precincts in an imprecise manner. The Court finds
Graves's contention persuasive given that the volunteers
Allen relied on misunderstood whether a location consisted of
multiple precincts or just one precinct. This
misunderstanding forced Allen to reconstruct precincts from
the available data. Allen may have successfully reconstructed
these precincts, of course. The Court concludes, however,
that this adjustment reduces the likelihood that Allen has
evaluated precisely accurate data. Consequently, Graves's
report and testimony undercut some of the Plaintiffs'
contrast, the findings and methods of Paul Herrnson, a
professor of Political Science at the University of
Connecticut, are unsound and lack credibility. Dkt. No.
102-6, p. 3 (Pg. ID 1984). Herrnson determined that the
elimination of straight-party voting will not increase voter
wait times because “the straight-party option has been
shown to lead to greater confusion, increased voter errors,
and more individuals feeling the need for assistance during
the voting process.” Id. He attests that these
issues are particularly pronounced for African-American
voters “with low literacy levels and other
characteristics associated with traditionally
underrepresented groups.” Id.
concedes that shading in one oval takes less time than
shading in eighteen ovals, but he argues that voting consists
of more than simply shading in ovals. Id. at p.
12-13 (Pg. ID 1993-94). According to Herrnson,
straight-ticket voting in Michigan is confusing because
ballots do not include instructions about how to override a
straight-ticket vote. Id. at p. 14 (Pg. ID 1995). He
determined that a study of voters from Maryland, Michigan,
and New York revealed that voters reported higher
satisfaction with a ballot where they voted for each
candidate individually, as contrasted with a ballot having
the straight-party option. Id. at p. 28-29 (Pg. ID
2009-2010). Herrnson claims that these participants, when
completing a straight-ticket ballot, asked for help more
frequently than when they were completing a ballot which
allowed them to vote for each candidate individually.
Id. at p. 29 (Pg. ID 2010). And, according to
Herrnson, this confusion leads to more voters asking for
assistance than would be the case without straight-ticket
voting. Id. at p. 18 (Pg. ID 1999).
determinations include several analytical gaps which the
Court is unwilling to overlook. The first, and most alarming,
is that straight-ticket voting is confusing to so many
Michigan voters that its elimination will expedite the voting
process. For 127 years, Michigan ballots have included a
straight-party option. And in the 2016 election, almost half
(49.2%) of Michigan voters used the straight-party option.
Dkt. No. 108-2, p. 9 (Pg. ID 2402). Thus, the Court strains
to comprehend how the mechanics of straight-party voting
might confuse Michigan voters generally.
more, Herrnson reached this conclusion in reliance on a study
of voters from Maryland, New York, and Michigan. Maryland and
New York do not have straight-party voting. Herrnson, then,
bases his findings on a study which includes voters who
probably have no prior experience with a straight-party
Herrnson's analysis requires that the Court agree that
straight-party voting not only confuses Michigan voters, but
also that this confusion compels so many voters to ask for
assistance as to negate the three minute increase in voting
time that PA 268 would introduce for 1.5 to 2.5 million
voters. This is inconceivable. The Court doubts that PA 268
is confusing to Michigan voters generally, and there is no
evidence regarding how many Michigan voters request
assistance or how much time this assistance ordinarily
entails. The Court, therefore, will not place any weight on
Herrnson's examination of the impact of PA 268 on voter
the Court recognizes that PA 268 includes an appropriation
for voting equipment. But aside from asserting that voting
booths are inexpensive, the Secretary offers no evidence
regarding how this appropriation will specifically reduce
wait times. Evidence, for example, describing how many voting
booths or other equipment might be purchased and used in
certain areas. In any event, that evidence would not have
saved the Secretary's argument. The Plaintiffs rightly
contend that voting precincts can accommodate only so many
additional booths. See Dkt. No. 1-15, p. 6 (Pg. ID
285). Consequently, additional voting booths, standing alone,
will not quell the congestion that PA 268 would create in
parties vigorously debate whether PA 268 causes longer lines
and wait times. Given the overwhelming number of elections
officials who determined that PA 268 will cause drastically
longer wait times and the relative strength of
Plaintiffs' expert evidence, the Court finds that the
Plaintiffs have shown that PA 268 will cause significantly
longer lines and wait times.
Effect of PA 268 on African-American Voters
Court further concludes that African-Americans will
disproportionally suffer increased wait times.
African-Americans vote a straight-party at vastly higher
rates than whites. The Plaintiffs demonstrate this fact
through research by Kurt Metzger, Regional Information
Specialist with the United States Census Bureau for
thirty-seven years. Dkt. No. 108-2, at p. 3 (Pg. ID 2396).
Metzger studied 2012 to 2016 election data from Michigan.
Id. at p. 2 (Pg. ID 2395). For 2016, he studied all
eighty-three Michigan counties; for 2014, sixty-nine
counties; and for 2012, sixty-one counties. Id. at
pp. 6-7 (Pg. ID 2399-2400). To identify the racial
composition of a given area, he relied on 2010 census data.
Id. at p. 6 (Pg. ID 2399). Because precinct
boundaries changed frequently between 2010 and 2016, Metzger
analyzed the prevalence of straight-ticket voting among
communities, which is a larger collection of voters than
precincts. Id. at p. 7 (Pg. ID 2400). Based on his
analysis, there were 1, 522 communities in Michigan in 2016.
Id. at p. 10 (Pg. ID 2403).
aggregating and examining this data, Metzger found that
“it is quite clear that African Americans are more
likely to use the straight party voting option and will be
disproportionately affected by its elimination.”
Id. at p. 2 (Pg. ID 2395). He observed that 49.2% of
all Michigan voters used the straight-party option in the
2016 general election. Id. at pp. 9-10 (Pg. ID
2402-03). But in communities where African-Americans
constituted less than 40% of the voting age population, only
46.5% of voters used the straight-ticket option. Id.
at p. 9 (Pg. ID 2402).
straight-ticket voting rates were much higher in communities
where African-Americans constituted a substantial percentage
of the voting age population. For example, in the twelve
communities where African-Americans were the majority
demographic, 77.7% of voters used the straight-party option.
Id. 68.9% of voters used the straight-ticket option
in the seven communities where African-Americans were 40 to
49.9% of the voting age population. Id. This
evidence shows that if a Michigan community has a high
percentage of voting age African-Americans, that
community's voters use the straight-ticket option at a
addition, the evidence shows that African-Americans are using
straight-ticket voting in high rates for the Democratic
Party. In communities where African-Americans constituted at
least 40% of the voting age population, 94.8% of
straight-ticket votes were submitted for the Democratic
Party. Id. at p. 25 (Pg. ID 2418). The Republican
Party, however, garnered 53.3% of straight-ticket votes in
communities where African-Americans were less than 40% of the
voting age population. Id.
analysis of the Secretary's expert Laurence S. Rosen
Ph.D., does not shed doubt on Metzger's findings. Rosen
has been a demographer and research professional for over
forty years and, in 1980, was selected as Michigan's
first state demographer. Dkt. No. 102-3, pp. 4-6 (Pg. ID
1833-35). Based on his review of Metzger's data and
conclusions, Rosen found a “weak level of association
between race and straight-ticket voting across the
state.” Id. at p. 15 (Pg. ID 1844). He claims
that straight-ticket voting is popular in both communities
that have many African-Americans and communities with few or
no African-Americans. Id. at p. 16 (Pg. ID 1845).
notes, for instance, that in several communities in Ottawa
County, African-Americans make up no more than 1% of the
population. Id. at pp. 19-20 (Pg. ID 1848-49). Yet
56% to 64% of voters in those communities utilized the
straight-party option. Id. He also highlights that
Ottawa County had a 54.7% straight-ticket voting rate, and
only 1.4% of its voting age population was African-American.
Id. at p. 22 (Pg. 1851).
Rosen observes that Allegan County, Livingston County, and
Washtenaw County have few African-American residents, but
these counties' residents voted a straight-party at rates
between 45.8% and 50.9%. Id. Thus, according to
Rosen, race is not driving the high straight-ticket voting
rates demonstrated by Metzger. Id. at p. 16 (Pg. ID
1845). Rather, Rosen believes that other factors better
explain the variation in straight-ticket voting rates.
findings, however, are unconvincing when contrasted with
Plaintiffs' evidence that every community with a high
percentage of African-Americans of voting age has an
exceptionally high straight-ticket voting rate. Dkt. No.
108-2, p. 9 (Pg. ID 2402). Indeed, the voting rates in
communities with high percentages of African-Americans of
voting age dwarf those of the small number of communities
identified by the Secretary as having high straight-party
voting rates and low African-American populations. In
addition, the straight-party voting rate of communities with
a high percentage of African-Americans of voting age far
exceeds the statewide rate of straight-party voting.
Therefore, it is of no moment that a few, discrete
communities have high rates of straight-party voting, despite
having a low or non-existent African-American voting age
Lower Levels of Literacy and PA 268
have also offered forceful evidence that African-Americans in
Michigan have lower levels of literacy than whites.
Plaintiffs have also shown that, as a result of these lower
levels of literacy, PA 268 will disproportionately cause
African-Americans to (1) take more time than whites in
completing ballots; and to (2) abandon their ballots at
higher rates than whites out of frustration or lack of
ability. In support of these contentions, Plaintiffs present
an expert report by Daphne Ntiri, an African-American studies
Professor at Wayne State University. Dkt. No. 108-5, p. 2
(Pg. ID 2511). She specializes in adult education and
has determined that African-Americans have, on average, lower
levels of literacy than whites. Id. at pp. 4-5 (Pg.
ID 2513-14). She has reached this finding partly based on
evidence that “there is clearly a direct correlation
between the rate of illiteracy in Michigan cities and the
size of the African American population [in Michigan
cities].” Id. at p. 14 (Pg. ID 2523). Ntiri
additionally relies on a United States Census Bureau study
regarding educational attainment in Michigan. Id. at
p. 13 (Pg. ID 2522). The Census Bureau study covers 2011 to
2015, and reflects that in Michigan African-Americans were
less likely ...