[EL] The Strange MI Voting Case

Fri Sep 9 13:55:22 PDT 2016

For everyone who believes there is no difference, it’s unreasonable to ignore the practicalities.

A few relevant practicalities:

·        Different demographic groups have very different turnout habits.  As a general rule, turnout in suburban neighborhoods is heaviest between opening and 10 am and again from 12-1 pm, while turnout in urban black neighborhoods is heaviest between 3 pm and closing.  This seems to be true across the country (a practical field lesson, not a legal one).  A corollary concern is that someone who is discouraged by a long line at 8 am has another option – come back later.  The same is not true at 7 pm.

·        In working class communities, the ability of voters to come during the slow periods midday are much lower than those of voters of a higher economic status.  And, yes, class and race do correlate.

·        In high turnout elections we can predict where we will have 3-4 hour polling place lines.  And we also know where there are hour-plus lines every election.  Do we really need to tell the Ohio Secretary of State where they are?  I can.  And I’ve only driven through Ohio twice, one time spending a single evening there.

·        Polling places in suburban neighborhoods tend to be able to be expanded to accommodate more polling booths.  In many urban cores, that’s not possible.  And, from first-hand experience in Philadelphia, I can tell you that just relocating polling places is not always possible either, whether due to ADA or other concerns.

·        Whether due to overt racism, racism disguised as partisanship, historic benign neglect, or some non-pejorative reason, in many communities the polling places and resources are not allocated in a manner that is equitable.  Whether it is what we saw in Arizona recently or some of the stories of the urban cores that are coming out in current litigation, arguing that we have equality is just a fallacy.  Whether straight lever voting is a requirement is something people (hopefully) smarter than me are litigating.  But to pretend we don’t currently have bona fide disparate impacts of how voting resources are allocated is silly.

·        Does anyone really believe that if these decisions did not disproportionately impact communities of color (and, as a result, Democrats), that Michigan’s governing structure wouldn’t have adopted them.  Really?  Eliminate an incumbent protection program?  Really?

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of David A. Holtzman
Sent: Friday, September 09, 2016 3:05 PM
To: Jon Sherman
Cc: law-election at uci. edu law-election at uci. edu
Subject: Re: [EL] The Strange MI Voting Case

I read "increasing the lines in polling places ... maybe by 2 minutes or more per person" as referring to average extra time per person,
taking estimated accumulation into account, based on data like previous turnout at different times during the day, and rates of using the crutch.
And anyway, the obvious remedy is to provide more voting booths.
Unless you think "we shouldn't waste money on elections."
  - dah

On 9/9/2016 11:35 AM, Jon Sherman wrote:

Without expressing an opinion on the (preliminary) outcome in the case.... 2 minutes more per person is of course an extra hour for voter #31 in line and an extra 2 hours for voter #61. And these wait times are more pronounced in urban precincts. It's not just your extra 2 minutes - it's the cumulative extra 2 minutes of everyone standing in front of you. So perhaps the question is not whether voters can do without straight-ticket voting (they of course can) but whether they should have to endure the wait times that come with the elimination of that option. And whether the burden of that additional wait time is felt uniformly across all groups across  the state or not.

Jon

On Sep 9, 2016 1:06 PM, "David A. Holtzman" <David at holtzmanlaw.com<mailto:David at holtzmanlaw.com>> wrote:
What of the obvious offensive implication here, that “black people can’t<http://www.imdb.com/title/tt0105812/> vote” (so they need a crutch to keep the line moving)?

Isn’t a more important “real concern on election day” that if the straight ticket crutch is available, people will be expected to use it?  And that those who don’t will risk being labeled “uppity?”

If, in another state, a straight ticket device is *instituted* to *shorten* wait times at polling places, particularly those where a lot of African-Americans vote -- rather than providing more voting booths (duh!!) -- wouldn’t that be obscenely outrageous?

Hell, if black people are expected to vote straight-ticket Democratic, why not just enter those votes for them in advance, and make them come to the polls if they want to vote differently?  Seriously, you could do that for anybody who registers as a member of a party.  (Why waste money on giving those people ballots?)  Or, in states where you have race data in the rolls, you could do it just for poorly-represented racial groups!

When I read this morning that Justice Thomas indicated he would have let Michigan eliminate the crutch, at least for this election, I wondered if he wasn’t somehow channeling Ward Connerly<https://en.wikipedia.org/wiki/Ward_Connerly>.  (Do not suggest that black people can’t think for themselves as well as others....)

Finally, isn’t it a bit weird to think that for members of a group that had to fight -- seriously fight -- to get to the polls, waiting two minutes more on line could somehow make voting not worth it?

  - David Holtzman

On 9/8/2016 8:56 PM, Rick Hasen wrote:
  #SCOTUS Sometimes Decides Even When It Doesn’t Decide: The Strange MI Voting Case<http://electionlawblog.org/?p=86369>
Posted on September 8, 2016 8:37 pm<http://electionlawblog.org/?p=86369> by Rick Hasen<http://electionlawblog.org/?author=3>

It is almost midnight on the East Coast, and we still have no ruling from the Supreme Court on Michigan’s application to allow it to eliminate straight ticket voting<http://electionlawblog.org/?p=86158> (a mechanism which allows a person to vote for all party offices with a single vote). A federal court had ruled preliminarily that Michigan’s abandonment of this device (which many states have eliminated) would adversely harm African-American voters, in part by increasing the lines in polling places (maybe by 2 minutes or more per person, a real concern on election day). This looks like a Voting Rights Act violation.

A panel of the Sixth Circuit refused to stay that order (meaning straight ticket voting would remain for November), and the entire Sixth Circuit, sitting en banc refused (on a split vote to get involved).

Michigan rushed to the Supreme Court for relief, and told the Court it needed an answer by today, September 8, in order to know how to print ballot materials. So I, as well as many others, expected the Court would rule today. They usually rule before deadlines like this. I also thought for various reasons<http://electionlawblog.org/?p=86158> Michigan had a very low chance of getting relief on this motion.

So here we are with almost the day over and nothing.

Michigan might be able to stall tomorrow for a few hours if the order does not come by morning (in 2014, we had a Texas voter id ruling and Justice Ginsburg dissent issued at 5 am on the Saturday before early voting was starting in Texas). But it has to treat this as equivalent to the denial of relief from the Supreme Court.

I strongly suspect that the reason for the delay is a dissent from one or more Justices (the likely suspects are Justices Alito and Thomas). After all, if the Court was going to grant relief, it knew it had to do so by the end of September 8.

We will probably know soon enough, but here, deciding not to decide is also deciding.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D86369&title=%23SCOTUS%20Sometimes%20Decides%20Even%20When%20It%20Doesn%E2%80%99t%20Decide%3A%20The%20Strange%20MI%20Voting%20Case&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>

[]
--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com<mailto:david at holtzmanlaw.com>

Notice: This email (including any files transmitted with it) may be confidential, for use only by intended recipients.  If you are not an intended recipient or a person responsible for delivering this email to an intended recipient, be advised that you have received this email in error and that any use, dissemination, forwarding, printing or copying of this email is strictly prohibited.  If you have received this email in error, please immediately notify the sender and discard all copies.

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com<mailto:david at holtzmanlaw.com>

Notice: This email (including any files transmitted with it) may be confidential, for use only by intended recipients.  If you are not an intended recipient or a person responsible for delivering this email to an intended recipient, be advised that you have received this email in error and that any use, dissemination, forwarding, printing or copying of this email is strictly prohibited.  If you have received this email in error, please immediately notify the sender and discard all copies.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160909/688ca3e6/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160909/688ca3e6/attachment.png>