Eric Lupher is president of the Citizens Research Council of Michigan, a nonpartisan, nonprofit policy research organization based in Livonia and Lansing.
Any time Michigan stands alone in some state practice, we should ask if it is being innovative or stuck in the mud.
We’re in the middle of initiative and referendum season, when issue proponents are circulating petitions to amend the state Constitution or adopt or revise state law. Michigan’s process for reviewing the form, style, and substance of initiative petitions stands in contrast to those used in every other of the 24 states that allow citizen-generated initiatives.
Michigan has a process for reviewing the form of petitions before they are circulated, but it has none for reviewing their substance. Ballot-issue proponents have the option of submitting draft petitions to the Board of State Canvassers (BSC) before circulating those petitions to gather signatures, but state law does not require the pre-approval of the petition form.
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The BSC’s responsibilities are purely ministerial. Whether petitions are submitted prior to circulation or afterward, the BSC may only weigh in on format, fonts and type size, placement of items, and other form issues. The BSC may not consider the substance of proposals, the language used, or whether petitions correctly characterize those parts of the Constitution that would be altered or abrogated by the proposal if adopted.
In fact, there is no process or authority for anyone inside state government, or any other interested party, to assess the substance of proposals, including their constitutional or statutory legality. Consequently, reviews are done after petitions are circulated and submitted to the BSC, often through lawsuits, thus injecting the judiciary into what are inherently political questions. Success in these lawsuits stands to undo the work of the proponents and negate the will of hundreds of thousands of electors who signed these petitions.
Back to the drawing board
We’ve already seen this in the current initiative cycle.
The proposed part-time legislature petition was submitted to the BSC three times. The first two, the proposed constitutional amendment was withdrawn from consideration before the BSC could weigh in because of issues raised by the state elections officials, outside interests, and a member of the BSC. Ultimately, the proponents of the proposal – Clean Michigan – opted to forego getting BSC pre-approval as to form prior to petition circulation. And then, several weeks after gathering signatures, Clean Michigan further refined the amendment language, restarting signature collection.
More recently, BSC certification of the Voters Not Politicians initiative was stalled by a lawsuit challenging the substance of the proposed constitutional amendment. By this point, the form of the petitions had been signed off on by the BSC, volunteers had circulated them, those petitions had been submitted, and the state Board of Elections had determined that the group had more than enough signatures to qualify for the ballot.
How to fix it
In 2017, the Citizens Research Council studied this process and considered potential reforms. Our analysis indicated language review is most ripe for reform. Of all of the states with initiative and referendum, Michigan stands alone in the lack of meaningful review of proposal language and substance prior to petition circulation.
Other states use front-loaded processes to weed out “frivolous” initiatives; provide proponents and opponents greater confidence that the ballot questions will pass legal muster; allow for the creation of summaries, fiscal notes, as well as arguments for and against the question; and concentrate the focus of those certifying submitted signatures solely on their legitimacy and sufficiency.
Much of the controversy and legal wrangling that seems to surround ballot questions could be alleviated by requiring the approval process prior to circulating petitions and mandating a meaningful review of issues’ substance as part of that process.
A couple of alternatives are worth considering. Florida pauses the signature gathering process after a fair number of signatures have been gathered, but before the groups reach the finish line, to seek advisory opinions from the state Supreme Court. Issues and objections must be raised at this point. If problems are identified, proponents can address those issues and restart the process.
Another approach would allow interested parties a window of time before the petition circulation process begins to raise issues with proposed ballot questions, so that proponents can consider redrafting the measure to address any defects. Many states include arguments, of limited length, from proponents and opponents in materials attached to the petitions.
A third alternative would emulate the informal process used in Louisiana, to have a neutral third party do the analysis.
Michigan’s back-loaded process does not serve the citizenry well. Citizens who signed petitions may feel their voices are being muted. Financial supporters may feel their investments are being wasted. And confidence in government is eroded when courts decide the fate of contested petitions for what may be seen as political reasons. The initiative process was designed to allow grassroots reforms offered outside the political wranglings of the legislative process. All efforts should be made to strengthen that process.