U.S. Court of Appeals for the Sixth Circuit

  • November 5, 2012

    by E. Sebastian Arduengo

    It appears the push by Ohio Secretary of State Jon Husted to suppress voter turnout through thinly veiled measures like voter ID laws and a confusing provisional ballot policy will continue through to Election Day. ACSblog has devoted extensive coverage to Husted's efforts to keep Ohio voters from the polls. The long and short of it is that since this election cycle got in to full swing, Husted (pictured) has striven to ensure that voting will be “fair and genuine” (read: as difficult as possible) for hard-working Ohioans.

    It started back in August when Ohio Republicans reduced the early voting period from thirty-five days to eleven, even cutting back on the Sunday before the election – the time when African-American churches have traditionally encouraged parishioners to exercise join in the democratic process. In response, voting rights activists had to gather enough signatures to force an Election Day referendum on the issue. The state’s Republicans then changed course and stopped all early voting in the three days before Election Day, with an exception for members of the military. The Obama campaign challenged that measure in court, and on Oct. 11, the U.S. Court of Appeals for the Sixth Circuit ruled that the early voting restrictions violated the equal protection clause and restored full early voting for Ohioans.

    But, that setback didn’t stop Husted. He cut back early voting in Democratic-leaning cities by limiting early voting hours on weekdays, making it nearly impossible for those with day-jobs from voting either before or after work. Meanwhile, in heavily Republican areas, Republican election officials approved measures to expand early voting hours on nights and weekends. This sparked another public outcry, and instead of expanding ballot access for all, Husted issued a statewide mandate directing all counties to limit early voting times. Republican election officials minced no words when explaining why they wanted to limit voter turnout. In the words of Franklin County (Columbus) GOP Chair Doug Preisse, “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban [e.g., minority] voter-turnout machine.”

  • October 11, 2012

    by Jeremy Leaming

    A federal appeals court provided a setback to Ohio Secretary of State Jon Husted’s effort to create more hurdles to voting, by ruling against a part of the state’s rigid provisional ballot rules.

    A panel of the U.S. Court of Appeals for the Sixth Circuit, in an unsigned opinion, kept in place an injunction barring election officials from refusing to count ballots cast at the wrong precinct because of poll workers’ errors. SEIU and other groups lodged a lawsuit against the state arguing that an injunction against the law was needed to “prevent the irreparable and unconstitutional disqualification of thousands of lawfully registered voters’ ballots in the upcoming November 2012 general election.” In August, U.S. District Judge Algenon L. Marbley agreed with SEIU’s argument and issued a preliminary injunction against the law.

    Today’s Sixth Circuit action supported the bar against the provisional ballot rule. The appeals court noted that pursuant to Ohio law poll workers carry the burden of ensuring voters are at the correct precinct and that they have correct precinct ballots. The appeals court also took note of the “voluminous evidence” presented by SEIU “that poll workers give voters wrong-precinct ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots.”

    “The Secretary failed to present evidence to the district court that other factors besides poll-worker error caused wrong-precinct ballots, and the State offers none now,” the Sixth Circuit stated.

    But the provision of the elections law requiring the rejection of right-place/wrong precinct ballots, the court continued “caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots without an opportunity to cure the situation. The mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained.”

  • June 1, 2012
    Guest Post

    By Michigan Supreme Court Justice Marilyn Kelly and retired Sixth Circuit Judge James L. Ryan. Justice Kelly will participate in a panel on judicial campaigns and public confidence in the courts during the American Constitution Society’s National Convention in June.


    Since the turn of the century, Michigan has gained a reputation for Supreme Court election campaigns that are among the most expensive, least transparent and most partisan in the country. Our campaign ads have been among the most offensive. That is why we convened a bipartisan task force of prominent Michiganders to study how Supreme Court justices are selected across the nation and recommended improvements to Michigan’s Supreme Court selection process.

    The 2010 candidates for the Michigan Supreme Court raised a total of $2.6 million. The political parties and state-based interest groups reported spending another $2.5 million. But data collected from the public files of state television broadcasters and cable systems showed that an additional $6.3 million was spent by the political parties and interest groups. Michigan law does not require this candidate-focused “issue” advertising to be reported in the state campaign finance disclosure system.

    This was not the first time that the majority of money spent in a Michigan Supreme Court campaign was undisclosed to the public. For the elections from 2000 through 2010, $21.5 million was reported and $20.8 million was paid for undisclosed television advertising.

  • September 6, 2011

    by Jeremy Leaming

    After returning from its August recess, the U.S. Senate resumed its snail’s pace of taking action on the administration’s judicial nominations, by overwhelmingly confirming Judge Bernice Bouie Donald to the U.S. Court of Appeals for the Sixth Circuit, after her nomination had been languishing for months.

    Senate Judiciary Chairman Patrick Leahy (D-Vt.), noted in a press statement, following the 96-2 vote, that it was the first federal appeals court nomination confirmed since May. Before leaving town for its break, the Senate had confirmed a mere four nominations, leaving 19 others that were ready for a vote.

    A U.S. District Judge from Tennessee, Donald, was voted out of the Senate Judiciary Committee in spring, after a hearing lasting about 20 minutes. Judge Donald (pictured) also adds some seriously needed diversity to the Sixth Circuit, becoming the first African American woman on the Circuit.  

    Senate Leahy said, “I hope this month Senators will finally join together to bring down the excessive number of vacancies that have persisted on Federal courts throughout the Nation for far too long. We can and must do better.”

    There are more than 90 vacancies on the federal bench, 37 of them deemed judicial emergencies.

    Murray Fogler, president of the Houston chapter of the American Board of Trial Advocates, in a Sept. 4 column for the Houston Chronicle urged the Senate to start confirming judges, noting his state’s vacancy rate. “Our own district here in Houston, the Southern District of Texas, is operating at an even lower percentage [than the national level]. With three seats vacant out of 19, the district is operating at 84 percent," he wrote.

    Fogler continued, “The Senate’s constitutional duty to advise and consent on nominations merely requies them to conduct an up or down vote.” But instead of moving on judges ready for an up-or-down vote, Fogler stated, “the Senate is instead holding the judiciary hostage, and this cannot be tolerated in a functioning democracy of checks and balances.”

    See JudicialNominations.org for analysis and up-to-date information about the efforts to fill federal court vacancies.

  • June 30, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, author of two ACS issue briefs on the constitutionality of the Affordable Care Act’s individual responsibility provision, or “individual mandate,” and a frequent contributor to this blog and other blogs and periodicals. Lazarus’s ACS Issue Briefs are available here and here.


    As the various health reform legal challenges have proceeded through lower federal courts respectively hospitable and hostile, all parties, participants, and observers have agreed that in the end, the Supreme Court will resolve the fate of the Affordable Care Act’s (ACA) individual mandate to carry health insurance, paying little heed to the conflicting opinions of lower court judges.  But that assumption may need to be revisited, in light of Sixth Circuit Judge Jeffrey Sutton’s decision to join Carter appointee Boyce Martin in yesterday’s 2-1 ruling upholding the constitutionality of the ACA mandate.  It is just possible that Sutton’s 27-page opinion could be one to which members of the high court’s conservative bloc will give serious attention. 

    In part, that’s because of who Sutton (pictured) is.  Not only is he the conservative justices’ philosophical kin.  More important, he is their intellectual peer.  As noted on the conservative Volokh Conspiracy blog by Orin Kerr, “Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular ‘feeder’ judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate.”

    But more important than the pedigree of the author of this opinion is its content.  Of the – so far – four opinions upholding the mandate (by three district judges and by Judge Martin in the same case) Sutton’s methodical and bombast-free analysis is the most comprehensive in dissecting the issues raised by all the arguments devised by ACA opponents.

    Strategically, Sutton frames his argument as a right-leaning legal and policy wonk speaking to a Federalist Society conference, or a meeting with like-minded jurists.  In addition, Sutton acknowledges throughout that he is but a “middle-management judge,” respectfully mindful that his superiors on the Supreme Court will have the last word.  The argument clearly recognizes that, at bottom, this litigation is the latest phase of a fierce three decade-old war between two schools of conservative constitutionalism: on the one hand, the long dominant mainstream conservative vision celebrating judicial restraint, respect for precedent, and deference to elected decision-makers; on the other, libertarian anti-government activism, which had been confined to a small cadre of fervent but marginalized enthusiasts until 2010, when the tea party mobilized and opposition to ACA became Republican Party orthodoxy.  In light of his own history as a fervent promoter of a states’ rights-oriented concept of “federalism,” Sutton would have surprised no one had he gone with the new flow and come down hard against the mandate.  Instead, his opinion is an unambiguous recommendation to traditional conservatives, specifically, Justices Scalia, Kennedy, and Roberts, to stick to their knitting and leave this explosive policy debate to legislators and voters. 

    Sutton’s bottom-line holding that the Commerce and Necessary and Proper clauses authorize the mandate closely resembles his Democratic colleague Judge Martin’s opinion; indeed, prominent libertarian ACA opponent  Ilya Somin (who has twice appeared on ACS panels) termed theirs  the "Martin-Sutton approach" with “extremely radical implications” more “sweeping” than the three previous district court decisions favorable to the Obama administration.  But unlike Martin, who held it unnecessary to reach the question whether the mandate could be justified as an exercise of Congress’ tax-and-spend authority, Sutton began his opinion by elaborately rejecting the administration’s arguments in support of that claim.   Perhaps that introduction could remind readers, especially conservative readers, that the opinion’s author is no knee-jerk defender of Congressional prerogatives or the hated ACA in particular.