Future of Michigan 1931 abortion law may hinge on when words become gibberish

• The fate of an abortion rights ballot proposal is now before the Michigan Supreme Court
• Abortion rights supporters have urged the court to rule by Wednesday
• Proponents and opponents have filed court briefs to convince the judge to rule in their favor

Nov. 9, 2022: Michigan Proposal 3 supporting abortion rights wins big

LANSING — Michigan Supreme Court could decide this week whether an abortion rights initiative can appear on the state’s Nov. 8 ballot — a ruling critical to the fate of abortion rights in the state.

As this week’s legal showdown looms, groups on both sides of the abortion divide filed court briefs focused on whether the lack of spacing between words on the proposed ballot measure should disqualify it from the ballot.  

The court fight comes after the Board of State Canvassers — tasked with certifying ballot measures — deadlocked 2-2 Wednesday and on whether Reproductive Freedom for All, which would enshrine abortion rights in the state constitution, belongs on the November ballot. 

Related:

• 735K signed abortion-rights petition. How word spaces may keep it off ballot
• Michigan abortion, early-voting measures off ballot for now. Court fight next.
• Michigan abortion ballot proposal: Effect on parent consent, other laws murky

The deadlock followed a lengthy debate over apparent word spacing issues, where opponents to the initiative argued a lack of spaces between several words in the initiative caused words to run together — “gibberish” that should not be written into the constitution.

Among those entering the fray is Michigan Attorney General Dana Nessel — a Democrat who has said she would not prosecute those seeking or performing abortion under the state’s 1931 abortion ban — who filed an amicus brief Tuesday supporting the abortion rights campaign. 

In her brief, Nessel called the board’s failure to certify the proposal last week “an affront to direct democracy in this State.” The board “usurped the Legislature’s authority by refusing to approve the petition” because two board members “thought the word spacing was insufficient,” she said.

“In the absence of a statutory requirement, further questions arise: how much space is sufficient for the Board? Do ballot committees need to invest in rulers to ensure that the board’s preferred spacing exists between every word? Or is the test whether a reasonable person could comprehend the test?”

Nessel’s arguments followed a filing Monday by Citizens to Support MI Women and Children — an anti-abortion coalition — which called the abortion-rights proposal “garbled” and said it should be kept off the ballot.

The group argued that the Michigan Supreme Court has previously rejected ballot proposals “with typographical errors.” It pointed to a 2002 court decision, where a drug reform initiative was kept off the ballot due to an apparent typo. Authors of the proposal said it would add a new section — Article I, Section 24 — to the state constitution, but that section already existed.

The anti-abortion group said the measure failed formatting requirements because the lack of spacing between words inserted “non-words,” which they argue fail to meet the definition of “texts” as required in the state constitution.

The legal filings come in a lawsuit last Thursday brought by the group behind the ballot measure. The group wants the high court to order the measure be placed on the November ballot by Wednesday. The court may have to rule, if it rules at all, before this Friday, Sept. 9 — the statutory deadline for state canvassers to certify all qualified ballot measures for the November ballot.

Backers of the measure argue that the Board of State Canvassers already approved the format of the initiative in March and did not have authority to now reject it based on spacing issues — something state law does not list as a requirement. 

The deadlock among canvassers “disenfranchised” voters who signed the petition and represented an “attempt to silence” the campaign, the lawsuit argues. The proposal is qualified for the ballot, it argues, because it has sufficient valid signatures and meets all statutory formatting requirements. 

“The Board abandoned its clear legal duty when it declined to qualify the measure to appear on the ballot when both legal requirements have been met,” the lawsuit reads. 

“Qualifying a petition requires certainty — it is a binary choice: are there enough valid signatures or are there not enough valid signatures? Does the form of the petition comply with the mandatory form elements included in the Election Law or does it not?”

The campaign had turned in more than 735,000 valid signatures, according to a staff report. The Board of State Canvassers granted it conditional approval in March, and the state Bureau of Elections recommended that the board certify the measure for the November ballot.

Six University of Michigan law professors filed a brief Monday in support of the petition, also arguing state canvassers lacked authority to reject the measure based on spacing issues not articulated in state law.

“The Board cannot simply conjure up grounds that are not unambiguously mentioned in the statute and use those grounds to reject petitions and override the results of a valid, democratic process,” the professors argued.

Also joining in support of the abortion petition: seven Democratic county prosecutors and a coalition of advocacy groups and churches, including the League of Women Voters of Michigan and United Church of Christ.