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Conservative Appeals Court Allows Michigan to Enforce Ban on Paid Transportation to the Polls in Loss for Voting Rights Advocates

People voting in Detroit in 2020

Voters fill out their ballots at a school gymnasium on November 03, 2020 in Lansing, Michigan. After a record-breaking early voting turnout, Americans went to the polls on the last day to cast their vote for incumbent U.S. President Donald Trump or Democratic nominee Joe Biden in the 2020 presidential election.

A federal court in Ohio on Tuesday allowed a Michigan state law that bans paid transportation to the ballot booth to take effect in an order. The law is viewed by Democrats as a voter suppression measure.

In a 2-1 ruling, a three judge panel of the U.S. Court of Appeals for the Sixth Circuit overturned a prior injunction against enforcing the state law which makes it a crime for a person to “hire a motor vehicle or other conveyance or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election.”

This is not, however, the first time the law has been signed off on by the appellate court–something the judges involved noted in their brief, five-page ruling that allows the statute to be enforced.

“This dispute over a Michigan election statute is again before us,” Ronald Reagan-appointed Judge Danny J. Boggs wrote. “Michigan’s legislature appealed (in lieu of the state’s attorney general) the district court’s preliminary injunction of that statute’s enforcement. In October 2020, we granted the Michigan legislature’s emergency motion for a stay of the injunction pending appeal.”

Eastern District of Michigan Judge Stephanie D. Davis, a Democrat appointed by Donald Trump, barred the state from enforcing the law late last September in a ruling that observed “[t]he November election is nearly upon us and any particular election only occurs once.”

At the time, just days before the 2020 election, the Sixth Circuit’s ruling was fashioned as an emergency stay pending appeal of the lower court’s preliminary injunction. Tuesday’s ruling, on the other hand, is fashioned as an outright reversal of Davis’s injunction.

“The circumstances are largely the same as before, except that there is no longer an imminent general election,” the conservative-majority panel opined. “We previously held that ‘the harm to the voter-advocacy organizations’ without an injunction ‘appears modest.’ Without an impending election, that harm is even less—whatever amount of surprise befell the advocacy groups in the 2020 elections, they now are keenly aware of the voter-transportation law and can organize their future activities in compliance with it.”

Democratic Party and voting rights advocacy groups originally sued Michigan Attorney General Dana Nessel (D) to void application of the law as an “unreasonable and unnecessary obstacle” to voting that violates both the First and 14th Amendments “and the clearly expressed wishes of a supermajority” in the Wolverine State.

Nessel, a Democrat, took no position on the lawsuit but her office’s stance effectively meant that she chose not to defend the law–effectively allowing the district court to enjoin the statute without a defense. The GOP-dominated Michigan legislature stepped into Nessel’s shoes and was later joined by GOP organizations.

According to the GOP-appointed majority–Boggs was joined in his opinion by George W. Bush-appointed Circuit Judge Deborah L. Cook–the “legislature [has] made a strong showing that it [is] likely to prevail on the merits” and “there has been no change in the underlying law or fact that undermines this outcome, so our earlier decision binds us.”

The circuit judges also took aim at the district court by opining that Davis “erred in finding the [voting rights groups] likely to prevail, and [the court] abused its discretion by issuing an injunction.”

In a footnote, the majority waived away the voting rights groups’ First Amendment claims–without actually addressing them on the merits–by categorizing the paid transportation ban as a “lesser burden” on voting that entails a more accommodating standard of review and which, relying on Supreme Court precedent, puts the onus on those claiming voter suppression to “bear a heavy burden of persuasion.”

“The appellees do not seem likely to shoulder that heavy burden,” Boggs argues in the lengthy, multi-paragraph footnote. “The Michigan statute is likely not a severe burden on their rights because it does not appear to result in ‘exclusion or virtual exclusion’ from the ballot. The state’s interest in preventing potential voter fraud is an important regulatory interest. And prohibiting paid vote-hauling is likely a reasonable, nondiscriminatory restriction justified by that interest.”

In a dissent, Bill Clinton-appointed Circuit Judge R. Guy Cole Jr. blasted the majority for even taking the case in the first place–insisting that the appellate court does not have jurisdiction to hear the appeal. Those complaints are in line with his previous dissent in the October 2020 emergency stay order where Cole argued that federal law preempts Michigan’s voter transportation statute. At the time, he noted that the Federal Election Campaign Act precludes states from limiting expenditures in relation to federal candidates and that Michigan’s ban on paid transportation–the only such law in the country–runs afoul of federal law under the legal theory of field preemption.

Cole also called out his colleagues for relying on their previous analysis (from October) in the Tuesday ruling–arguing that the decision shortchanges the gravity of the occasion.

“With emergency motions, the panel does not benefit from oral argument and the briefing is expedited and limited,” the dissent argued. “Nor are we able to afford the issues the same depth of consideration. In the present case, we faced an impending election and issued an emergency stay only five days after receiving briefing. Such a decision should not bind us in our consideration of the merits. That is especially true because the original stay decision was issued without jurisdiction, and we still lack jurisdiction to consider this appeal.”

The dissent also rubbished the notion that the legislature should have standing to file the lawsuit in the first place:

In sum, the majority decides for the first time that a panel considering an appeal’s merits is bound by the holdings in its prior emergency stay order. Next, it holds that Legislatures have standing when their laws are temporarily enjoined. Courts have “never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.” We should not be the first. I respectfully dissent.

[image via John Moore/Getty Images]

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