Prop 3 shows voters’ distrust. But is Michigan Constitution the best remedy?

Dan Krueger used to get phone calls from working parents asking him why they weren’t allowed to vote absentee in Michigan.

Krueger, the longtime clerk in Ottawa County, said the parents would take him through a typical election day:

Up early to get kids out the door for school. In the office by 8 a.m. Swing by the precinct on their lunch break. Leave the precinct without casting a vote because the line is too long and lunch break only lasts an hour. Leave work. Pick up the kids. Make dinner. Get them ready for bed. Check the clock. By then, it’s 8 p.m. and polls are closed.

Krueger empathizes. A Republican who ran Ottawa County elections for more than three decades until he retired in 2014, Krueger supports a statewide ballot initiative, Proposal 3, in part because it would enshrine no-reason absentee voting and other voting reforms in the Michigan constitution.

“It’s simply a process of making sure that those laws that we have on the books are going to stay there,” he said, “and they’re not going to be manipulated in such a way to make (voting) more difficult.”

For proponents like Krueger, the state constitution is a safeguard against unreliable lawmakers who have thwarted efforts to expand voting access in Michigan for years. And, they add, Proposal 3 guarantees basic voting rights for all Michiganders, regardless of political party or voting history.

But dropping Proposal 3 into the constitution ‒ rather than changing voting rights through legislation ‒ has some concerned the effort circumvents the legislative process and, in so doing, potentially will make the Michigan constitution too cumbersome to change with the times.

To illustrate the point, Tony Daunt, executive director of the Michigan Freedom Fund, which opposes the voting initiative, points to Proposal A, which changed Michigan’s approach to school funding by constitutional amendment back in 1994. In the years since, Prop A has proven difficult to change or fix as its flaws emerged. Since the late-2000s housing market crash, local government groups say the constraints on property taxes that Proposal A created have made it difficult for them to recover property tax revenue as the market rebounds.

“I don’t think you would find anybody in the state who doesn’t have some area (of Propl A) they think could be improved,” Daunt said. “But it’s such a political hot potato that getting agreement to go into the constitution to make those changes is virtually impossible.”

On a deeper level, the introduction of Proposal 3 — led by the ACLU of Michigan, the League of Women Voters of Michigan and the NAACP through a ballot committee called Promote the Vote — is indicative of a distrust in state government that has been simmering for years.

More than one supporter of the ballot proposal told Bridge that frustrations have mounted with the Legislature — led by majority Republicans in the House and Senate the past eight years — for not adopting changes that would make it easier for people to cast ballots, and many voters don’t feel like elected officials represent their interests.

The nonprofit Center for Michigan, which publishes Bridge, found while talking to Michiganders in 2016 that a majority of those surveyed had “low” or “very low” opinions of state government. (Read the full report here.)

“We’ve all been frustrated with going through the process of lobbying the Legislature and failing year after year,” said Judy Karandjeff, president of the League of Women Voters of Michigan. “This was the time to do it. We were all willing to put in the work.

“I don’t think we know what the Legislature will do in the future,” she added, “so guaranteeing these rights seems imperative.”

The constitutional question

If adopted, Proposal 3 will amend Michigan’s constitution to reaffirm the rights to a secret ballot and to conduct a post-election audit, and to ensure ballots are mailed in a timely fashion to military personnel and Michigan voters overseas; allow straight-ticket voting; allow voters to cast absentee ballots for any reason; allow Michiganders to register to vote up to and including on Election Day; and allow automatic voter registration when state residents visit a Secretary of State branch, unless the person opts out.

An opposition committee, Protect My Vote, formed in August to unsuccessfully challenge the signatures collected by the voting rights group with state canvassers. But the new group has not yet had to file any state campaign finance documents, so it’s unknown who is funding it.  

Some parts of Proposal 3 would seem to enjoy nearly universal support. It’s hard to argue, for instance, against the need to ensure secret ballots or for giving military personnel sufficient time to vote, said Eric Lupher, president of the nonpartisan Citizens Research Council of Michigan, which analyzed Proposal 3.

The issue with Proposal 3, the group wrote, is less about the individual voting provisions it would change and more about whether the state constitution is the right place to put them.

“Housing public policy preferences within the state constitution makes it more difficult to remove or modify them, effectively insulating them from legislative responsibility and discretion,” the CRC, which does not take a formal position on ballot measures, wrote in its analysis.

The Michigan constitution can only be changed by statewide voters through an amendment, submitted through a statewide citizen initiative or the Legislature, or by convening a state constitutional convention. Each has significant hurdles to success, which could lead to frustrations if, say, technological advances render parts of Prop 3 unnecessary, or worse.

Thirty years ago, no one contemplated voting over the internet, because the internet was in its infancy, Lupher noted. Since it’s impossible to predict what changes will come in the next 30 years, he added, it’s important for policymakers to have flexibility to adapt should any of the voting provisions in Proposal 3 become obsolete.

"The constitution is meant to lay out the framework for how our government should work,” Lupher said. “It is not meant to have the fine detail of different aspects of voting, or different aspects of tax law, or different aspects of protecting natural resources. It's that distrust of the Legislature that has led us on an increasing trend, I guess, to put more and more things in the constitution because the Legislature hasn't done it.”

Twenty-seven states and Washington, D.C., offer no-reason absentee voting, according to the National Conference of State Legislatures. Just eight states offer straight-ticket voting, in which voters can cast one vote for an entire political party’s slate of candidates in partisan races (That includes Texas, which has already decided to eliminate the option starting in 2020.)

Michigan has eliminated straight-ticket voting three times, in 1964, 2001 and 2015. Voters reinstated it via statewide referendum the first two times. In 2015, however, lawmakers attached a $5 million budget appropriation, a legislative trick that also made it immune from citizen referendum. Federal courts recently upheld the ban, so it won’t be an option this November.

In 2015, then-state Rep. Lisa Posthumus Lyons — now the Republican lieutenant governor nominee — proposed a bill that passed the House that would have allowed no-reason absentee voting after presenting a photo ID. That bill was linked to the straight-ticket voting ban, but didn’t survive.

“A lot of these things have been talked about for a long time,” said Todd Cook, campaign manager for the Promote the Vote ballot committee. “There’s a sense of frustration that even the ones that seemingly had widespread support, like no-reason absentee voting, were still floundering.”

Cook listed other reasons voters are feeling frustrated with Lansing: Speculation that the GOP-majority Legislature will try in lame-duck session after the election to scale back two citizen proposals — to raise Michigan’s minimum wage and require employers to offer paid sick leave. Federal lawsuits also have been filed against Michigan for not getting ballots to military and overseas voters on time. And many residents in communities such as Flint remain angry that state-appointed emergency managers stripped power from locally elected officials when facing financial crisis.

“What do you say to the person who says, we tried that with the emergency managers and then they just passed a law over us?” Cook said. “How do you tell those people, ‘Don’t worry about it, just believe in the process?’”

Said Lupher: “I can’t argue against that. It's the reality, and it's, I think, sort of a sad indictment on our little democracy here in our state that sometimes the will of the people seems to be ignored.”

A gateway to fraud?

Current Republican Secretary of State Ruth Johnson has not taken a formal position on Proposal 3, although a spokesman said she is concerned same-day voter registration would not leave local clerks enough time to verify a prospective voter’s eligibility, and it’s not clear what documents would be considered proof of residency.

The two major-party candidates running to succeed Johnson take opposing sides on the ballot initiative. Mary Treder Lang, a Republican, said she does not intend to vote for the proposal, while Democrat Jocelyn Benson said she will.

Some conservatives, including Treder Lang, say they believe Proposal 3 creates the potential for voter fraud, particularly the provision allowing same-day registration.

Clerks across the state already are busy on Election Day running elections without adding the complication of also registering people to vote, said Daunt, of the Michigan Freedom Fund, which has ties to the DeVos family and advocates for conservative policies.

“This is enshrining in the constitution a gateway to fraud,” Daunt said. “That is, I think, a reckless way of setting policy.”

Daunt also echoed Lupher’s concern about loading the state constitution with the fine print of policy. As of 2010, the state’s current constitution had been amended 31 times since 1963, according to the Citizens Research Council.

Chris Thomas, Michigan’s elections director from 1981 until he retired in June 2017, supports Proposal 3. He disputes the idea that fraud would be rampant if Michigan voters could register the same day they vote.

As of March, 17 states and Washington, D.C., allowed same-day voter registration, according to the National Conference of State Legislatures. The group said states that do this commonly require a voter to show a photo ID, and some states have established criminal penalties for fraudulent activity.

“I think fraud is one of the biggest untruths that has been used as a reason why Michigan has not moved forward over the last decade,” said Thomas, who was appointed by Democratic Secretary of State Richard Austin and later served under three Republican Secretaries of State.

The Michigan Secretary of State’s office has identified a small number of incidents of voter and registration fraud, according to a memo Johnson sent to the Trump administration last fall. A spokesman told Bridge that registration fraud does occur, though not many cases are prosecuted, and it would be difficult to detect on Election Day. Studies around the country have found voter fraud to be a rare occurrence.

“The fraud,” Thomas said, “has never panned out.”