DETROIT – Asking a registered voter to reaffirm that they are a United States citizen this November shows a lack of equal protection under the law and has already created a lack of consistency throughout the Department of State, U.S. District Court Judge Paul Borman ruled on Friday, and therefore the question should not be on ballots in November.

The injunction came in a case brought by the American Civil Liberties Union, the Service Employees International Union, Ingham County Clerk Mike Bryanton and others.

Should the citizenship question have remained on the ballot and a voter refused or neglected to answer it, the “streamlined” protocol this November would have been that an election official ask the voter to complete the section. If the voter still refused, the official would then have to read a statement that informs the would-be voter that he or she must be U.S. citizen in order to cast a ballot, and would then be handed a ballot, according to Elections Director Chris Thomas.

Borman rejected the citizenship checkbox for several reasons including that it would single out a voter and open the door to excessive ballot challenges from outside parties; and, most importantly, that some clerks had already ordered ballots without a checkbox while others would have the checkbox.

Mary Ellen Gurewitz, attorney for the plaintiffs, said clerks in Dearborn, Detroit, Lansing, Macomb and other locations had already ordered ballots without the citizenship checkbox. That, she said, accounted for more than 1.7 million voters alone, so including the checkbox after the fact posed an undue burden on those counties.

Ironically, Assistant Attorney General Ann Sherman, speaking on behalf of Secretary of State Ruth Johnson, said the same was true for those who had already ordered ballots with the checkbox, whom she said constituted for the majority of clerks in the state.

“The unequal application is because of a handful of rogue clerks who are refusing to conform to the secretary of state’s orders (to include the checkbox),” Sherman said.

But Borman quickly put down her argument: “The law was vetoed in July. When you call them rogue you mean only that they are not carrying out the secretary of state’s issuance of orders,” he said.

Thomas was the only person to testify, much of which was spent answering questions about the technical aspects of the voter registration process, and much less about how it was preparing to handle training its clerks and election officials on the new citizenship question.

“Many of the clerks I’ve talked to have said ‘I’m gonna wait and see,'” Thomas said, referring to what would happen with the ruling, even inviting those clerks who did not include the question to argue on their behalf in the courts if they so choose.

But Borman joked that the courts were “not looking for business,” adding that he thought the process could be far more “streamlined” (using the words of Sherman) if it either put up a sign at the entrance of the polling location that one must be a U.S. citizen to vote or just included that in the application where a voter fills out their name, date of birth and address, as is already prescribed by law and was suggested by Governor Rick Snyder when he vetoed SB 803 .

As the two sides began their closing arguments around 4:30 p.m., Gurewitz whizzed through with no questions from the judge and finishing in less than the 20 minutes allotted by Borman. She again illustrated the inconsistency among ballots across the state, including the fact that the secretary of state’s website did not include the question, absentee ballots did not include the question, and yet some in-person ballots across the state would or would not.

“The public interest will be served by this injunction,” she said.

But Sherman called the relief by the plaintiff “extraordinary” and attempted to suggest that the burden imposed “was minimal.”

Borman interrupted Sherman on multiple occasions, forcing her to both answer his questions and try to make her case that the plaintiff had not met the requirements for receiving the relief it sought.

“We don’t believe plaintiffs have met the burden of showing irreparable harm. The unequal protection is created by clerks threatening to print ballots … when they do not have the authority to do so,” she said.

Borman was less than enthused.

“The bill (SB 803) was not enacted because the governor vetoed it and nevertheless it is being pursued as a guideline,” he said. “There is a lack of equal protection and a lack of consistency. It is clear that a lot of clerks aren’t following it because it wasn’t legally enacted.”

He continued: “It’s a situation that will create problems because any individual who does not fill that out…they are going to be told to fill it out. If they don’t fill it out, they’re going to be read the statement and if they still don’t fill it out they’re going to get a ballot. If it’s so important, why is it not on absentee ballots?”

Borman said that the court was not suggesting that it could not use a sign or include the language in the initial application a voter receives at a polling location, “But this process…where there is a spotlight on that voter in front of the line and being issued an order and then read a statement, it is a burden on the right to vote.”

Johnson, in speaking with reporters after the hearing, said that the ruling is “very disappointing” given the state is aware that many noncitizens are registered voters based on internal 2010 data it surveyed. People then face deportation or the inability to become a citizen years later when they have been found of illegally voting, despite that many are unaware that they cannot vote, she said.

“We don’t have a way to fix the problem and that’s why we want people to be asked this question,” she said.

It was not immediately clear if the department would appeal the case as it was waiting on the written ruling that Borman said he would have completed by Tuesday afternoon, Johnson said.

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