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Bridge Michigan
Michigan’s nonpartisan, nonprofit news source

Michigan law limiting ballot drives unconstitutional, court rules

Multiple provisions of a lame-duck law that makes it harder for groups to get a citizen initiative on the ballot are unconstitutional, a Court of Claims judge ruled Friday

The law places a 15 percent cap on the number of signatures ballot petitioners can gather in any one of the state’s 14 congressional districts and requires petitioners to sign an affidavit with the state indicating whether they’re paid or volunteer. It also requires petitioners to display that designation while gathering signatures and invalidates signatures gathered by paid petitioners who hadn’t signed the affidavit or submitted false information. 

Michigan’s Republican-led Legislature sued Democratic Secretary of State Jocelyn Benson earlier this year, for not enforcing the law after Attorney General Dana Nessel, also a Democrat, deemed several parts of the law unconstitutional. The League of Women Voters first filed suit in May arguing the law was unconstitutional and the cases have since been consolidated. 

The law passed during a whirlwind lame duck legislative session after the 2018 election, during which three citizen initiatives supported heavily by Democrats passed on the statewide ballot. 

The GOP-led House and Senate argued that the law does indeed pass constitutional muster. They also said that Benson, who requested an opinion on the law from Nessel, asked for the opinion “so that she can circumvent the requirements of validly enacted statutes she has a legal duty to enforce,” according to the Republican complaint

But the Court of Claims disagreed, writing that the 15 percent cap “undoubtedly limits, impairs, and hinders citizens’ ability to engage in the constitutionally authorized initiative and/or referendum process by limiting circulators’ ability to circulate petitions in a given Congressional district.”

Rep. James Lower, R-Greenville, was the bill sponsor. He told Bridge when it was first proposed that the law was intended to require petitioners to get support from more than just urban areas of the state when pushing statewide initiatives.  

“I represent a rural part of the state. Under the current law you can get all of the signatures from southeast Michigan and I feel like we need more buy-in from (rural voters) if they’re going to be on the ballot, especially with the people who have been here talking to us saying that it represents the will of the people,” he said at the time, referring to groups like Voters Not Politicians and others, who voiced frustrations about Republican efforts to regulate the ballot measures.

The court said the requirement for petition signature gatherers to display whether they’re paid or volunteer is also unconstitutional because it requires petitioners to disclose that information at a time when it may sway voters on whether they support the initiative, which “discourages participation in the petition circulation process and inhibits core political speech.”

It ruled, however, that the legislature is justified in requiring circulators to disclose whether they’re paid or volunteer. That leaves the law’s affidavit requirements (and the invalidation of signatures if a paid volunteer fails to submit an affidavit) fully legal.

The Senate plans to appeal the case, spokeswoman Amber McCann said. The Secretary of State’s office is not required to enforce the law while the case continues through the Court of Appeals, per a status quo order issued by the judge earlier this week. 

"As we’ve said previously, both the Michigan Constitution and the First Amendment to the U.S. Constitution protect Michigan citizens’ right to amend our laws or state constitution through direct citizen petitions," Secretary of State spokesman Shawn Starkey told Bridge via email. "We are glad that today’s ruling upheld key portions of the attorney general’s opinion. As directed by the judge, we will continue to follow the guidelines of the entire attorney general’s opinion while the expected appeals proceed through court." A Nessel spokeswoman said she is also "very pleased" with the decision.

Mark Brewer, attorney for the League of Women Voters, said the group "is very pleased with the judge’s decision in this case because it removed barriers to circulating petitions in Michigan, and vindicates the constitutional right to petition." He said it was disappointing that the judge upheld portions of the law, but they haven't yet decided whether to appeal the decision.

However, Brewer said it's likely the case will eventually go to the state Supreme Court. "Ultimately these are the kinds of issues and the kind of rights at stake," that will make it important for the state's highest court to weigh in, he said. 

Voters Not Politicians, the group behind the successful 2018 ballot initiative that formed the new redistricting commission, also said in a statement Friday they're "pleased" with the decision.  

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