Michigan Attorney General: GOP limits on petition drives are unconstitutional

June 2019: Michigan Republican lawmakers challenge Nessel opinion on ballot drive law

A Republican-backed lame-duck law that would make state ballot initiatives harder is unconstitutional, Michigan Attorney General Dana Nessel said in an opinion Wednesday that found fault with several sections of the law.

Unless overturned in court, Nessel’s opinion is considered binding on state agencies, such as the Secretary of State’s office, which oversees state ballot issues.

Dec. 28, 2018: Gov. Snyder signs bill making ballot initiatives more difficult
Dec. 13, 2018: Michigan House passes bill putting new requirements on ballot initiatives

Most notably, the Republican law says that petitioners can only gather up to 15 percent of their signatures in any one congressional district — a provision Nessel, a Democrat, said is unconstitutional “because it creates an obstacle for voters without any support in the Constitution itself.”

“The Michigan Constitution gives Michiganders the right to support change in the law, and while the Legislature can write laws to implement the process, the Legislature cannot cut voters out of the process,” Nessel said in a statement.

Nessel’s opinion will affect citizen initiatives aiming for the November 2020 ballot — that is, if it’s not litigated first. Ballot committees already face tougher hurdles to success because they will need to gather thousands more signatures than they did in 2018 due to a formula that considers higher turnout in last year’s general election.

Republicans passed the ballot drive restrictions in December, shortly after the 2018 election in which Michigan voters approved three ballot initiatives favored by Democrats (Rep. Jim Lower, R-Greenville, the law’s sponsor, said it wasn’t inspired by the 2018 initiatives.) Former Republican Gov. Rick Snyder signed it into law on his last day in office.

Republicans who supported the lame-duck law argued it would increase transparency in the ballot initiative process and ensure support for statewide initiatives comes from around the state, rather than just highly populated areas. Democrats argued that the 15 percent cap in any one congressional district would unduly restrict voters’ ability to use the ballot initiative process.

The partisan divide aligns with Michigan’s geographic divide ‒ Democrats tend to cluster in counties with heavily populated metro areas, while Republicans draw strength from the state’s less populated rural counties.

Lower said Nessel’s opinion “felt like a lot of grasping at straws.”

Nessel’s conclusion on the 15-percent signature threshold is “ridiculous,” Lower said, “because the Constitution says the Legislature has the authority to implement statute, to implement that section as it relates to petitions, and that’s all this was.”

Secretary of State Jocelyn Benson, also a Democrat, asked Nessel for an opinion on the law in January, saying she was “deeply concerned” about the law’s constitutionality. She said in a statement Wednesday that she’s “grateful” to Nessel “for clarifying the constitutional infirmities” of the law.

“We will carefully review her opinion and update our guidance to potential petition sponsors, circulators and voters accordingly,” she said.

Michigan courts have held that state Attorney General opinions are binding on state agencies unless overturned by the courts, which raises the prospect of a lawsuit challenging her findings.

“The Secretary of State is bound by that Attorney General opinion until a court says otherwise, or at some time a different Attorney General might see it a different way,” said Eric Lupher, president of the nonpartisan Citizens Research Council of Michigan.

As the state’s legal counsel, Lupher said, “the Attorney General is interpreting the laws and giving advice on the constitutionality of them, but it is advice. The state is bound to follow that advice.”

Lower said he expects someone to mount a legal challenge, but said he doesn’t yet know who that might be.

Nessel’s opinion concluded two other provisions of the lame-duck law are also unconstitutional: A requirement that Benson’s office create petition forms based on congressional districts (rather than by county, as the current forms do) and a requirement that petition circulators file an affidavit stating whether they’re being paid or volunteering.

“Singling out paid circulators with a separate procedural hurdle, and requiring ‘check boxes’ that could lead to circulator harassment, are all new requirements that fail to withstand constitutional concerns aimed at preserving free-speech rights,” Nessel said.

Lower argued the petition forms provision “actually streamlined the process” by reducing the number of forms necessary (14 instead of 83). Over the last two decades, ballot initiatives have been increasingly funded by wealthy donors outside Michigan, he said, and it’s important the public know whether petitioners are being paid for their work.

“Just like every law, I think they need to be updated over time,” Lower said. “I think voters should know: Is this being funded by out-of-state millionaires and billionaires?”

Michigan Republican Party Chairman Laura Cox said in a statement Wednesday that Nessel “decided to throw out a law she doesn’t support on purely partisan grounds.”

“The job of the Michigan Attorney General is to enforce Michigan’s laws, not create them,” Cox said. “Dana Nessel has established a dangerous precedent which undermines the elected representatives of our state, and gives the Attorney General’s office almost unlimited power.”

Two groups have already formed ballot committees for the 2020 election cycle: Right to Life of Michigan and the Michigan Heartbeat Coalition. Both would place added restrictions on abortions in Michigan. Right to Life of Michigan spokesman Chris Gast said the law wouldn’t affect the group’s petition drive either way because it already collects signatures statewide.

Related: Michigan abortion foes can call procedure ‘dismemberment’ on ballot petitions

“We planned to work under the current law, which is a more difficult, more restrictive law,” said Corey Shankleton, president of the Michigan Heartbeat Coalition. “So if it reverts back to the original law that actually makes our job that much more easier.”

MI Time to Care, the group behind last year’s paid sick leave ballot initiative, has also said it’s open to trying to make the ballot again in 2020 after GOP lawmakers watered down the committee’s original ballot language in an effort to address concerns in the state’s business community that the initiatives would harm companies.

The group will determine whether to mount another ballot campaign after the Michigan Supreme Court decides whether it will weigh in on the constitutionality of the Republican-passed changes to the sick leave and minimum wage proposals. The state’s high court will hear arguments in July as it determines whether to issue an advisory opinion in the matter.

The Republican lame-duck ballot law “was a direct strike at democracy,” said Danielle Atkinson, one of the organizers of the MI Time to Care committee, on Wednesday. “I appreciate the Attorney General (for) her opinion about that being unconstitutional. We believe that the ballot initiative process is very important to democracy, and it should be kept accessible to voters.”

Nessel maintains in her opinion that other portions of the new law can be enforced under the constitution. That includes a provision that would invalidate the signatures on a petition sheet if any false information is later found on the sheet, and another that would allow groups to get final approval from the Board of State Canvassers for petition summary language before gathering signatures.