On August 17, the Sixth Circuit refused to stay the decision of a U.S. District Court that said Michigan must put a straight-ticket device on this year’s ballot. Here is the decision.

The state said it will ask for en banc review. The Sixth Circuit has 15 full-time judges, and only they can vote on the petition for rehearing. Ten of them are appointees of Republican presidents, and five are appointees of Democratic presidents. It happens that all three judges who were on the original panel are appointees of Democratic presidents. They are Judge Karen Nelson Moore, who wrote the opinion; Judge Ronald Lee Gilman, who is not full-time and thus can’t vote on the request for rehearing en banc; and Judge Jane B. Stranch.

Judge Gilman wrote separately to say that the August 17 decision should not be taken to mean that the U.S. Constitution requires Michigan to include a straight-ticket device. He said that the August 17 decision only means that the device should be on the 2016 ballot. His concurring opinion hints that if Michigan would permit early voting, or no-excuse absentee voting, the outcome would probably be different. Also the opinion hints that if Michigan removed party logos from the ballot, the result might be different. The groups and individuals who filed the case had worried that because Michigan voters are accustomed to having a straight-ticket device, there is reason to fear that if it is removed, some voters will believe that if they draw a circle around the party logo, they will think they have voted for all nominees of that party. When Missouri removed the straight-ticket device, but retained party logos, there were voters who made that mistake. Missouri then responded by removing the party logos. Thanks to Thomas Jones and Rick Hasen for this news.