SACHS WALDMAN _—— innate sss coanecn™ pont ve eee ae arene eno An a —" eee ee sis rae Ae See omar September 7, 2016 Honorable Elena Kagan United States Supreme Court 1 First Street, NE. ‘Washington, DC 20543 Antention: Danny Bickel! Re: Ruth Johnson ». Michigan State . Philip Randolph Institut, et al Case No, 164225 Dear Mr. Bickel: In accordance with the Couns direction, we are emailing our Response to Emergency Application to Stay the Preliminary Injunction Pending a Merits Decision by the Cour of Appeals and Cerificate of Service and sending a hard copy by overnight mal Please contact me ifyou require anything else from us at this ime. Enclosure ce: Aaron D. Lindstrom Denise C. BartonNo. 164225 In The SUPREME COURT OF THE UNITED STATES ‘RUTH JOHNSON, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF MICHIGAN, Applicant, MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, BT AL, Respondents. RESPONSE TO EMERGENCY APPLICATION TO STAY THE PRELIMINARY INJUNCTION PENDING A MERITS DECISION BY THE COURT OF APPEALS Directed To The Honorable Elena Kagan, “Associate Justice Of The United States And Circuit Justice Por The Sixth Oireuit Andrew Nickelhoff Mark Brower Counsel of Record Goodman Acker, P.C. Mary Ellen Gurewitz 17000 W. Ten Mile Road Sachs Waldman, P.C. Southfield, MI 48075 2211, Jefferson Ave,, Ste. 200 (248) 483-5000 Detroit, MI 48207 cata) 496-9441 Counsel for Respondents September 7, 2016 ee‘TABLE OF CONTENTS ‘TABLE OF AUTHORITIES... INTRODUCTION [REASONS FOR DENYING THE APPLICATION I. The Court lacks jurisdiction to grant the requested relief. Il, The standards for granting a stay have not been met. ‘A. The applicant will not be irreparably harmed by the denial of stay but millions of Michigan voters would be harmed by a stay; the balance of equities overwhelmingly favors denial of a stay. B. There is no reasonable probability that certiorari will be granted or that a majority of the Court will reverse the preliminary injunction, 1. The decisions helow follow and do not conflict with Crawford and the Andorson-Burdick framework 2. ‘The Sixth Cixeuit and District Court Propeny Applied the 3 Voting Rights Act an a a CONCLUSION. 10 10 13 1B:INDEX OF AUTHORITIES CASES Crawford v. Marion County Election Board, 563 U.S. 181 (2008). send Elrod v, Burns, 427 US, 347 (1976) Hobby Lobby Stores v. Sebelius, 568 US. 1838. Ct. 641 (2012) League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224, 238-44 (4 Cir. 2014).. Michigan State A. Philip Randolph Institute v. Johnson, _—_F.sd__,_ 6" Cir, 2016) sennnnnen 7 hia Citizens for Responsible Energy. Nuclear Regulatory Agency, 479 US. 1812 (1986) ‘Ohio State Conference NAACP v, Husted, 768 F.3d 524 (6 Cir. 2014) seo 13, 14, 15 Purcell v. Gonzalez, 549 US. 1 (2008)... Respect Maine PAC v. MeKee, 562 US.__, 181 8. Ct. 445 (2010), eet se Ruckelshaus v. Monsanto Co, 468 U.S. 1815 (1983) . Scripps Howard Radio v. Federal Communications Commission, 316 US. 4,9 (1942).. seen Twentieth Century Airlines u. Ryan, 74S. Ct. 8, 98L. Ed. 1143, 1145 (1958)... Veasey v. Abbott, No. 14-41127, 2016 WL 3923868, Slip. Op. at 35-36 (6! Cir. July 20, 2016)....u14 6.7.8INTRODUCTION For 125 years Michigan voters have had the option in general elections to vote a straight party ticket, ie. to vote for all the candidates of a political party with a single mark at the top of the ballot, Millions of voters of all parties use it, Ihave come to depend on it, and expect tobe able to use it again this November: Whatever its 19% Century origins and regardless of what other states do, it now serves an essential function in 21° Century Michigan: in a state which offors no option to vote by mail, no early voting and no casy voting by absentee ballot, the straight party option helps Michigan voters, particularly African-American voters, cope with one of the Tongest ballots and longest waiting times to vote in the entire country on Blostion Day. ‘This case is not about, as applicant claims, a constitutional right to vote @ straight party ticket ~ respondents have never made such a claim, Te is about the unconstitutional consequences for millions of voters of eliminating this option in the ‘unique context of Michigan elections ~ massive confusion and even longer lines at polling placos dotorring voters, especially African-American voters, from voting. Its this unconstitutional deprivation of the right to vote which the District CCoust's pretiminary injunction prevents, an injunction that first ¢ unanimous panel af the Sixth Cirouit and thon the entine Sixth Circuit declined to stay pending appeal to that court As summarized by Judge Gilman of the Sixth Circuit in his opinion concurring in the denial of stay:{The lead opinion concludes that PA 268 [eliminating the straight party ticket option) burdens the right to vote by increasing voter disenfranchisement in at least two ways. First, voter confusion resulting largely from the continued existence of the party vignettes on the bailote is likely to cause an increase in erroneous ballots due to some voters circling the vignettes rather than marking the bubbles in the partisan section of the ballot. The second burden involves longer lines at polling places, particularly in the African-American community. With regard to the longer lines, I beliove that precisely defining the burden at issue in this case is paramount, The consequential burden in my view is not—as the Secretary and the amici who support her argue—simply the extra time that each straight-party votor will have to spend marking additional bubbles. Nor is it the longer lines at polling places resulting from the aggregation of that extra time per se. [Rather, it is the fact, a3 supported by the current record, that the longer lines will deter citizens from voting. {[U]ntike the potential disruptions in other cases that involve voter identification requirements or the elimination of early voting, I see no grave harm to the state of Michigan in allowing straight-party voting to remain on the ballot this November, as it has for the past 125 years Appendix A to Application at 18-19 (emphasis added), ‘The applicant now asks this Court to stay the preliminary injunction, not in aid of this Court's jurisdiction, but pending the applicant's Sixth Circuit appeal ‘The applicant has presented no reasons which justify this extraordinary request for this Court to do what the entire Sixth Circuit has declined to do. ‘The Application should be denied. REASONS FOR DENYING THE APPLICATION I, The Court lacks jurisdiction to grant the requested relief. "The Application claims that the Court has jurisdiction to review the Sixth Circuit's August 17, 2016, denial of a stay pending appeal and to stay the DistrictCourt's proliminay injunction under Supreme Court Rule 23:2 and 28 USC §2101(9 pending an appeal to the Sixth Circuit. (Application a 4, 1), “That Rule and statute confer no such jurisdiction here Rule 25.2 states that a “purty to a judgment sought to be reviewed may poset to 4 Saati an appliontion ta stay the enforcoment of chat judgment, See 28 U.S.C §210109." (emphasis added) In turn 28 U.S.C. §210109 provides in pertinent part tha Im any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the Gxecution and enforcement of such judgment or decree may be staged fora reasonable time to enable the party aggrieved to obtain a writ of certiorari fom the Supreme Court..." (omphasis added) ‘This Rate and statute do not create jurisdiction here for several reasons First, neither the Sixth Circuit's denial of a stay pending appeal nor a preliminary injunction are a “final judgment or decree.” They are non-final and therefore Rule 28.2 and 28 US.C. §2101(0) do not provide the jurisdictional basis for ‘a stay, See Ohio Citizens for Responsible Energy v. Nuclear Regulatory Agency, 479 US. 1912 2986) eatin, J); Twentieth Century Airlines v. Ryan, 74 8, CL. 8, 981. Ba. 1148, 1145 (1958) (Reed, J). Second, the Application is not accompanied by nor even states an intention to file a potition for a wrt ofcortorari, Indeed, the Application states that Michigan will not be filing a petition for a weit of certiorari, (Application at 5) Because noreview is sought by certiorari, a stay is not available under Rule 23.2 or 28 U.S.C. s21010. ‘Thus, no jurisdiction exists under Rule 23.2 or 28 U.S.C. §2101() to grant a stay here.! Tl, ‘The standards for granting a stay have not been met. A. The applicant will not be irreparably harmed by the denial of a stay but millions of Michigan voters would be harmed by a stay; the balance of equities overwhelmingly favors denial of a stay. [A stay is an exercise of this Court's powers of equity whose principal goal is to “provent irreparable injury to the parties or to the public’ while an appeal is pending. Scripps-Howard Radio v, Federal Communications Commission, 316 U.S. 4,9 (1942), ‘Therefore, as Justice Blackman observed, “[aJn applicant's likelihood of success on the merits need not be considered . . . if the applicant fails to show irreparable injury from the denial of the stay.” Ruckelshaus v. Monsanto Co., 463 U.S. 1815, 1917 (1983) (citing authorities). ‘The applicant has failed to demonstrate this fundamental prerequisite for a stay, and her request should be denied on this basis alone, ‘The applicant cites but a single harm from the denial of a stay ~ that a statute will be enjoined, (Application at 16) Howover, the courts below have already found T7The Application dows not cite Rule 20 or the All Writs Act, 28 USC. § 1651(a), a8 an alternative basis OF jurndiction, Such a basie should not be inferred in the absence of an express request, See ‘Ohio Citizens for Responsible Energy, supra, 470 U.S. ot 1514. Even ifthe applicant had cited the ‘het she cannot moet the extraordinary standards fr auch relict Se, eg, Respect Maine PAC wv. ‘Moker, 02S. 191 8. Ct. 415 2010}; Hobby Lobby Stores v. Sebeias, 568 US 188. Ct. 641 2012) Gotomayor, J). 4a Tikotihood that that statute is unconstitutional. There is no harm whatsoever in enjoining an unconstitutional statute as the courts below did This claim of injury to the state ignores the irreparable harm done to the voting rights of millions of Michigan voters, including hundreds of thousands of Afviean- “Amorican votors, ifn stay is granted, Assessing and balancing the relative harms hore, the balance of equities overwhelmingly favors the denial ofa stay for soveral First, the District Court found that there was a substantial likelihood that the voting vights of all Michigan voters under the Fourteenth Amendment, and of Afvican-Amorican voters under the Fourteenth Amendment and Voting Rights Act, would be violated absent an injunction, It is welhestablished that the loss of constitutional rights is iroparable injury per se, Elrod v. Burns, 427 US. $47, 373 ase. ‘Those Bindings by the District Court were upheld by « unanimous panel of the Sixth Circuit, see Appendix A to Application, and were not disturbed by the entire ‘Sixth Circuit, se Appondix B to Application, "The Sjudge panel of the Sixth Circuit specifically sustained the District Court's conclusion as to irreparable harm: Wo also conclude that the Secretary is not likely to establish that the district eourt abused its discretion im granting an injunction beeause we find the district court appropriately evaluated the reuainiug proliminary- Injunction factors. Ae tho district court stated, “[w]hen constitutional Tights are threatened or impaired, ieeparable injury is presumed. A festrction on. the fundamental right to vote therefore constitutes irreparable injury.’ Mich. State A. Philip Randolph Inst., 2016 WL 3922358, at *13 (quoting Obama for America, 697 F.3d at 436).Michigan State A. Philip Randolph Institute v. Johnson, F.3d (es Cir, 2016) (Appendix A to Application at 17). Second, millions of Michigan voters would be harmed by a stay here in precisely the ways this Court warned against in Purcell v. Gonzales, 549 US. 1, 45 (2006) (per curiam), Michigan voters have had the option to vote a straight party ticket, ie., the ability to vote for all the candidates of a political party with a single mark on the allot, for 125 uninterrupted years. See 1891 Public Act 190, §14, codified at M.C.L. {§§168.787, .782b, .7950, 908 and .804, ‘The undisputed evidence in the record before the District Court indicates that 50% of Michigan's 7 million voters use it, and that 67-75% of its Aftican American voters do $0. See Michigan State APRI v. Johnson, ___ F.8d at ___ (Appendix A to Application at 10) (reciting the undisputed evidence before the District Court). It is this status quo which is preserved by the District Court's injunction. As the unanimous panel of the Sixth Cixcuit held in denying a stay of that injunction: “Of particular significance here, the district court's grant of a preliminary injunction maintained the status quo in Michigan that was in place for 125 years: maintaining straight party voting, where ‘the record does not show that there were any problems with the old ballot” that contained the straight-party option. Id. at *14. Consideration of the factors evaluated by the district court in granting a preliminary injunction also informs the remaining factors that We must evaluate in. determining whether ta stay the district court’s opinion. See Serv. Emp. Intl Union Local 1, 698 F.3d at 343. This case does not involve the potential disruption of complicated election-administration procedures on the eve of Election Day; rather, denying the Secretary's request for «stay here will merely require Michigan to use the same straight-party procedure that it has used since 1891. We find that theSecretary has not: met her burden to demonstrate that a stay pending appeal ofthe district court's order is warranted.” Michigan State APRI v. Johnson, F.3d at__ (Appendix A to Application at 17) (emphasis added.) Now, barely 60 days before the election and only 16 days before absentee ballots must be available to military, overseas and domestic absentee voters on ‘Septomber 24, 2016, see M.C.L, 168.714 and .759a, the applicant asks this Court to deprive millions of Michigan voters of their historic ability to cast a straight party vote. |A stay under these circumstances will create the very confusion and disincentive to vote this Court eautioned against in Purcell: ‘Court orders affecting elections, especially conflicting orders, can themselves result in voter confasion and consequent incentive to ‘remain away from the polls, As an election draws closer, that risk will increase, 519 US. at 45, ‘There have been four (4) consistent decisions by federal courts maintaining the 125-year old status quo ~ the option to vote a straight party ticket ~ for the ‘upcoming election. On July 21, the federal district preliminarily enjoined the State from prohibiting straight party voting; on August 15, the federal district court declined to stay that order pending appeal; on August 17, x unanimous pane! of the Sixth Circuit refused to stay the injunction; and on September 1, the entire Sixth Cireuit declined to review that decision,Each of these decisions has been accompanied by dozens of media storice stating that the straight party voting option is still available for this year's clection.? Thore has been no effort at any time since the passage of PA 268 by the applicant oF any other public official to educate voters that straight party voting will not be available in November. Tasning a stay order at this very late date conflicting with four (A) provious widely publicized decisions will have the very ffet Purcell counselled against: voter confusion and a disincontive to vote ‘Purcell alone provides the basis to deny the application. Finally, if more be neoded to demonsteate that the equities weigh heavily against a stay — and more is not needed ~ ifa stay is granted and ballots must be reworked now, it may be impossible to produce enough ballots by the absentee ballot deadline of Septomber 24 “The Applicant has requested a decision by Septombor 8, stating that this will sive her time to comply with hor statutory obligation to cortify by September 9 the ballot wording for the nonpartisan statewide proposals. In fact, there are no statowide ballot proposals this year. ‘The applicant fails to advise of or acknowledge the more significant doadlines for the 83 county clerks in Michigan who are responsible for carsying out tho time consuming task of ballot preparation, ‘The Applicant asserts, at page 4, that by August 30 ballots “were scleduled to bexin 1 Se, eg, "aderal Judge Blosks Michigan Ban on Steaght-Party Voting’, Detroit Free Pees July 21, 2016, "Bedeval Law That Voting”, Mlive, July 21, 2016; "Appaale Court: Michigan ust Allow Siraigh(-Tiskst Yotmng_{n November", Wall Seeost Journal, August 17, 20M “Court Rejects Motion. Keops Straight-Party Voting’, Detroit News, ‘Augut 17, 2016; “Michigan Votore Able go Uae Strnigh-Party Voting is November Election", 9810 Nave, Sepiember 1, 2016.being programmed, coded, and printed.” In fact, ballot preparation for the general lection began after the August 24 primary election as it is a complex and detailed process which takes weeks, See Declaration of Roger Cardamone {{5-10 (Attachment A). As of the date this response is filed, the ballots have been formatted, programmed and ended. Proof eopies of the ballots have already beon sent to the Michigan Department of State, Bureau of Blections and to candidates for review and corrections, if needed, Cardamone Declaration {)§ 6-8. The ballots must 0 to the printer by September $4 in ordor to be available to domestic, overseas and military absentee voters by the deadline of September 24%, See Cardamone Declaration, 11, Declaration of Bradley Thompson, {| 8 (Attachment B). The printing companies need at least 2 weeks, working continuously, to complete the printing, numbering of the stubs, folding, packaging and delivery of the ballots ‘Thompson Declaration 4¥ 6-9. If local clerks are now required to remove the straight party voting option from hallots already set to go to the printer this Friday, ‘that will delay ballot printing by several days, Cardamone Declaration $12. That will create, according to the election professionals who admi ister Michigan elections, “a very significant risk that absent voier ballots will not be printed and available for dome: military and overseas voters by the statutory deadline of September 24, 2016." Cardamone Declaration 13, Thompson Declaration, 11. Issuing & stay at this late date thus also risks denying absent voters timely access to their ballots which risks disenfranchising them altogether,‘The applicant will suffer no irreparable harm Gom the enjoining of an unconstitutional statute while millions of voters will be disenfranchised through late access to abconteo ballots and long Hines at the polls on Election Day if a say “The Application con and showd fe donind hased on tho lack of irrenarable harm to tho applicant if it is doniod and the ireparable harm to millions of Michigan voters fit is granted, B, There is no reasonable probability that certiorari will be granted or that a majority of the Court will reverse the preliminary injunction. $Bvon ifthe applicant fil a poition for cortiorari— and she has not so filed and states that she will not (Application at 5) there is no reasonable probability that cortiorasi will be granted or that a majority of the Court will vote to reverse the preliminary injunction. ‘The District Court decision rests on 2 separate grounds ~ Bqual Protection and the Voting Rights Act. Fither ground sustains the preliminary injunction, 1, The decisions below follow and do not conflict with Crawford and the Anderson-Burdick framework. ‘The Application claims that the decisions below conflict with Cravford v Marion County Election Board, 558 U.S. 181 (2008) and the Anderson-Burdick framework (Application at 5-9). ‘Thoy do not and infact they follow them closely ‘The decisions below both followed and applied Crawford’ commands that even a8 to “rational restrictions on the right to vote,” a “court must identify and 10evaluate the interests put forward by the State as justification for the burden Imposed by its rule, and then make the “hard judgment that our adversary systom demands,” 553 U.S. at 189-90. In other words, “[hJowever slight that burdon [on tho right to vote} may appear ... it must be justified by relevant and legitimate state intoroste suffciontly weighty to justify its limitation.” Id. at 191 “The Ssjudge pancl extensively evaluated the Distrit Court's Bqual Protection analysis, applying the Anderson-Burdick framework and sustained it. See Appendix A to Application a 7-14 ‘The applicant repeatedly argues that itis not a burden for a voter to vote for coach of the partisan offices individually instead of with a single straight ticket mark, But tho District Court did not hold that the addtional time it would take an individual voter to vote without the straight party option was a burden, The District Court concluded that when millions of voters were required to take auditional time to vote the cumulative effect would be much longer lines and that Tonger lines deter voters from ensting their ballots, The District Court's conclusion was based on extensive unrebutted evidence, including an expert report and detailed affidavits from local election administrators, that the elimination of straight party voting would create long kines and confusion in polling places for oll voters, deterring them from voting, and that these burdens on the right to vote would be worse for African-American voters, See id. at 9-11 (judge panel reviews and sustains District Court's conclusion)‘The 3-judge panel found that applicant presented ‘no testimony or expert reports in the district court to counter these facts” of a burden on the right to vote. Td. at 11 (emphasis added), ‘The applicant asserts that despite these burdens it has an interest in mimicking the 40 etates which do not have straight party voting. (Application at 1, 8, 10) However, the Sixth Circuit panel correctly dismissed this out-of-context ‘comparison! “The Secretary also places @ strong emphasis on the fact that most states do not have straight-party voting; if the clear majority of states do not offer straight-party voting, the Secretary ascerts, it is impossible to conclude that the absence of straight-party voting imposes an unconstitutional burden. See R. 26 (Prolim. Inj. Hrg Tr. at 29) (Page ID #71). Importantly, however, comparing the isolated voting practice of one state with the isolated voting practice of another ‘state is not always an apples-to-apples comparison, ‘This law presents fa strong example, Declarations submitted by plaintiffs report that Michigan ballots contain substantially more candidates than other states, and thus the practice of straight-party voting in Michigan may save far more time than straight-party voting in other states. See R. 1- 15 Gaxter Decl. at 2) Page ID #287); R. 1-15 (Swope Decl. at 2) Page ID #295). Moreover, Michigan does not allow early voting, and Michigan does not permit no-excuse absentee voting, see Mich. Comp. Laws §§168.758 & 168.759, making the average wait times at physical polling locations on Election Day of tremendous significance to Michigan voters. In the 2012 general election, Michigan had the sixth- highest estimated wait time as compared to other states. See 13 (Managing Polling Place Resourcos” Caltech/MIT Study at App. 1) (Page ID #78). Each of these facts does not impact voters in Ohio, for example. It is accordingly not enough for Michigan to simply rely on. tthe lack of straight-party volung un other states; the necessitry question is how this law interacts with other voting practices in Michigan, and the burdens this law places on voters who vote within Michigan's electoral framework.” Appendix A to Application at 11-12 (ootnote omitted),As to the other state interests allegedly served by eliminating straight party voting, again the applicant presented no evidence tothe District Court in support of those alleged interests, See id, at 12-13, Based on the entire record and the Taw, the S-judge panel summarized its analysis as fallows “In sum, the district court credited unrebutted evidence in the record demonstrating that PA 268 will increase the time that it takes to vote, particularly in African-American communities where straight-party’ voting is prominent and where lines are often already long, The district court also found that the law was likely to increase voter confusion and miseast ballots. Although this burden is not severe, itis, ‘also not slight. In the face of this burden, the state has offered only. vague and largely unsupported justifications of fostering voter knowledge and engagement. As the plaintiffs assert, there is nothing in the record “that straight party voters vote blindly, that they are less informed than other voters or that they fail to complete their ballot at fa lower rate.” Appellee Resp. at 11 (emphasis removed). After evaluating the burdens imposed by the law and the state's asserted justifications, we hold that the Secretary has not shown that there is a ‘substantial liketihood that she will prevail on appeal in demonstrating that the district court erred in evaluating the plaintiffs’ Equal Protection Clause claim.” 1d. at 15-14, Given the panel's and District Courts detailed, thorough and accurate legal analysis and the applicant's failure to make record in the District Court, there is no reasonable likelihood that certiorari will be granted or that a majority of the CCoust will vote to reverse the preliminary injunction. 2, The Sixth Cireuit and District Court Properly Applied the Voting Rights Act. ‘The Application finally asserts that the Sixth Cireuit and District Court improperly analyzed the Voting Rights Act claim by employing the framework of B‘Ohio State Conference NAACP v. Husted, 168 F.3d 624 (6% Cir, 2014) (Husted ID, stayed, 135 8, Ct. 42 2014), vacated as moot, No. 14-3877, 2014 WL 10384647 (6 Cir. 2014), (Application at 9-15) They did not, ‘Tho Application first exonsomaly assarta that this Court stayed Husted I“in the context of a likelihood of success analysis.” (Application at 9) But this Court's Leparagraph stay order says no such thing; it simply granted a stay without disclosing the reason(s) therefor. The stay of a September 4, 2014, preliminary injunction affecting an upeoming election could have beon granted based solely upon Purcell, supra, and not on the merits at all ‘The framework of Husted 11 for analyzing VRA claims in cases such as this is not in conflict with this Coutt’s precedents. In fact, itis derived from the toxt of the ‘VRA and this Court's precodents as detailed at longth in the Husted [opinion. See Husted I, supra, 768 at 549-60, The Fourth and Fifth Circuits have found Husted U's framework correct and have adopted it. See League of Women Voters of North Carolina u. North Carolina, 769 F.3d 224, 288-44 (4% Cir, 2014); Veasey v. Abbott, No. 14-41127, 2016 WL 3923868, Slip. Op. at 35-86 (6% Cir., July 20, 2016) (en banc) ‘The principal problem with applicant's VRA argument is Uhut, as with the Equal Protection claim, she made no record in the District Court in response to plaintiffs’ extensive proofs in support of their VRA claim. See, eg., Appendix A to Application at 18 (concurring opinion of Gilman, J.) (the applicant id not timely 4submit any proof contradicting plaintiffs’ evidenee;” the applicant “never submitted any contrary proof to plaintiff’ VRA exper Given District Court's application of the Husted II framework, a framework followed by tho Fourth, Fifth and Sixth Circuits, to undisputed facts, there is no romsonable likelihood that cevtinrari will he granted or that @ majority af the Court will vote to reverse the preliminary injumetion. CONCLUSION For all these reasons, the Emergeney Application for Stay should be denied. Respectfully submitted, LaLAndrow Nickelhott Js/Mark Brewer Androw Nickelhoff (P37990) ‘Mark Brewer (P35661) Counsel of Record Goodman Acker, P.C. ‘Mary Ellen Gurewitz (P25724) 17000 W. Ten Mile Road 2211 B, Jefferson Ave, Ste, 200 Southfield, MI 48075, Detroit, MI 48207 Counsel for Respondents September 7, 2016ATTACHMENT ARoger W. DECLARATION OF ROGER W. CARDAMONE Cardamone being first duly sworn, deposes and says as follows: Thave been the Chief Blection Clerk for Macomb County, Michigan since Suly 27, 1997. I make this affidavit based on personal knowledge about the implementation of federal and state laws governing ballot preparation, printing and distribution, ‘The Macomb County Clerk serves as Secretary to the Macomb County Election Commission, The Chief Election Clerk reports to the Macomb County Clerk. ‘The Macomb County Blection Commission has delegated to the Chiof Bleetion Clerk the responsibility of hallot preparation and distribution for all of Macomb County. ‘Macomb County, Michigan has approximately 620,000 registered voters and 337 voting precincts. There will be 370 different ballot styles for the November 8, 2016 General Blection. Some precincts will have up to three different ballot styles due to multiple school districts or villages within a precinct. Preparation of the November 8, 2016 Genoral Election ballots began shortly after the August 2, 2016 State Primary Election. Our office produced the first ballot proof set on September 2, 2016 and mailed a proof ballot to most candidates on the same day. ‘The Macomb County Blection Commission must send a proof ballot to each candidate appearing on the November 8, 2016 ballot. Candidates have 2 business days to review the proof and if necessary, contact the ‘Macomb County Clerk if any corrections are required. In addition to sending a proof ballot to each candidate, county election ‘commissions are required to send a proof copy of each ballot style to the “Michigan Department of State, Bureau of Elections. The MichiganBureau of Elections reviews the ballot proofs for errors and if necessary, requires us to make corrections and resubmit a revised proof. ‘The length of time for the Bureau of Elections to review county ballots varies from election to election, but it generally takes 2-3 days, ‘The process of proofreading ballots is very time-consuming. Each ballot ‘must e carefully inspected to ensure each ballot is in the correct format; a all olfices appear ou Une Iallot and in the proper place; that each district office is properly labeled; that each candidate's name is in the correct place and spelled properly (ballots may contain more than 100 candidate namos); if nocessary, that candidate names rotate properly from one precinet to another; the correct number of write-in spaces appears for each office: that correct judicial and other special ballot designations appear correctly and that each ballot proposal is correct and placed properly. 10,Absent voter ballots must be delivered to the Macomb County Election Commission by the 47* day prior to the General Election or by September 22, 2016. Absent voter ballots must be available for distribution to voters, especially military and overseas votors, no later than the 45 day before the General Hlection, or by September 24, 2016. The 45% day before the General Election is always on a Saturday, therefore wo use the 46% day as our actual deadline to have printed absent voter ballots delivered. 11 Macomb County and several other large Michigan counties use the same ballot printing company. In order to have ballots printed in a timely fashion for absent domestic, military and overseas voters, we must have a {inal ballot proof to our ballot printer two weeks prior to the 46% day or September 9, 2016, 12. Making last minute changes to the ballots, particularly a change that would affect each ballot style, would require each ballot style to be prooftead a second time. The elimination of the straight party voting ‘option is such « ballot style change. A revised proof ballot set would need to be sent to the Bureau of Elections. It merits note that all 83 counties in “Michigan would be submitting revised proof ballots to the Bureau of Elections at the same time.13.1n my professional opinion, ifthe elimination of the straight party voting option is required to be made to ballots already in production, there is a very significant risk that absent voter ballots will not be printed and available for domestic, military and overseas voters by the statutory deadline of September 24, 2016, WJ Toger W. Cardamone Chief Election Clerk ‘Macomb County Clerk's Office Subscribed and sworn to before me this 6 day of September, 2016 ~ £ Michael F. Gris, Notary Public ‘Macomb County, Michigan ‘Acting in Macomb County, Michigan ‘My commission oxpires: 12/19/2017ATTACHMENT BDECLARATION OF BRADLEY THOMPSON 1. My name is Bradley L. Thompson Il. My office address is 2001 W. Lafayette, Detroit, Michigan. 2. Tam the Chief Executive Officer of Inland Press a d/b/a of the Detroit, Legal News Co. 3. Inland Press has been printing ballots for Michigan elections since around 1994 and we are very familiar with the requirements regarding all aspects of the ballots, and with the statutory requirements regarding the deadlines for delivery of the ballots. 4, This year we will print the ballots for Wayne, Ingham, Tuscola, Gladwin, and St. Clair Counties. This will constitute about 25% of the precincts in the state and about 25% of the 7 million ballots needed for the November 8 general election. 5. We must deliver the ballots either to the counties, or direetly in some ‘cases to the cities and townships within the counties, by September 23, 2016. 6. Our tasks include printing of the ballots, numbering of the stubs, folding 4 sufficient number of the ballots for the absent ballot voters, packaging the ballots by precinct, and delivering them in a timely fashion, 7. The greater portion of the Wayne County ballots are for the City of Detroit. This year the Detroit ballot will be two sheets because of an unusually large number of candidates for school board, so our task is somewhat more difficult. 8. We receive the pdf files for the ballots either from the county clerk oF from E $ & S, which is a vendor for the scanners and which does the computer coding for the jurisdictions using their scanners. In order to deliver the ballots on time we need io receive the paf files by September 9. ‘This gives us just short of ‘two weeks to complete this enormous task 9. In order to complete the ballot printing on a timely basis we will run 2 12-hour shifts continuously, 7 days a week. 10. I understand that the state is asking that the ballots be changed so as to eliminate straight party voting, If this is done on or about September 9 it is my understanding that we will not receive the files for printing until September 12 or 13, and we would have only about 10 days to complete the job.11. If we have only 10 days to complete the ballot printing this year it will take superhuman efforts to timely deliver the ballots as required. We will make every effort to do this but at some point postponing the delivery of the pdf files to us makes our task impossible. Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct. 2 Z ——____ BRADLEY L. THOMPSON II Li, Dated:_9Z LcNo. 164225 In The ‘SUPREME COURT OF THE UNITED STATES [RUTH JOHNSON, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF MICHIGAN, Applicant, MICHIGAN STATE A. PHILIP RANDOLPH INSTITUTE, ET AL., “Respondents ‘CERTIFICATE OF SERVICE PATRICIA L. MERCHAK, certified that on September 7, 2016, she served u copy of Response to Emergency Application to Stay the Preliminary Inunetion Pending a Merits Decision by the Court of Appeals and his Cetficate of Service upon Honorable Elena agen by 1) emailing to the Cour at dbickell@supremecourt gov andthe pares at the email addresses provided below; 2) mailing sume in an envelope bearing postage fll prepaid, phinly dressed as follows to the parties and 3) sending « hard copy to the court by overnight mail: ‘Aaron D. Lindstrom Denise C. Barton Solicitor General Assistant Attomey General P.O, Box 30212 Dept of Attorney General Lansing, MI 48909 525 W, Ottawa St, FLS LindstromA @michigan gov P.O, Box 30736 Lansing, Ml 48909-8236 PATRICIA L. MERCHAK