#SCOTUS Sometimes Decides Even When It Doesn’t Decide: The Strange MI Voting Case

[Friday morning update: read about the Court’s order denying MI’s stay request here.]

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 (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 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.

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