(Source: MIRS.news, Published 09/02/22) Legal experts Friday called challenges to the voting and abortion-related ballot initiatives a "ridiculous" effort of "legal politics."
The Board of State Canvassers deadlocked along party lines this week on both Promote the Vote 2022 and Reproductive Freedom For All's separate initiatives – leading both to file suit in the Michigan Supreme Court, which generally has ruled against blocking ballot initiatives.
"This is an issue that has agitated me a bit over the past years," said Chris Thomas, state elections director from 1981-2017. "There's some clarity in some Court of Appeals decisions that tells the Board their job is to count signatures and make sure the form is proper – and that's it. They're not a constitutional law body and they keep acting as if they are. …
"These board members are not competent to make the calls on legal issues. That's not what they're there for. That's not their training and nobody has an expectation they are," he added. "It becomes the legal politics of if-I-can-block-the-issue-then-the-proponents-have-to-go-to-court even though they've done all they need to do – no matter how ridiculous the claim."
In 2012 the Supreme Court denied mandamus in Citizens for More Jobs Initiative v. Secretary of State, which would have expanded casino gaming by allowing eight additional casinos in the state. The court held the proposed amendment would have abrogated Article 4, Section 40 of the constitution and as a result, republication on the petition was necessary to comply with the statute.
Prior to 2012, the legal standard in such cases was "substantial compliance," which means the initiative's requirements meet the purpose/objective even if formal requirements are not complied with.
However, that changed in 2012 when the Supreme Court held 4-3 in Stand Up for Democracy v. Secretary of State et al., that "strict compliance" is needed, said John D. Pirich, a retired Honigman attorney who represented Stand Up's challenger, Citizens for Fiscal Responsibility.
Citizens challenged certification of the referendum petition alleging it failed to comply with the type-size requirement of the statute.
"To certify a petition that does not strictly comply with the requirements of MCL 168.482 on the basis that it substantially complied with the statutory requirements would defeat the Legislature's intent," then-Justice Mary Beth Kelly wrote.
Thomas said it was "bizarre" and "ridiculous" that the Supreme Court was asked to measure type font size. After that ruling, he noted, he started using a ruler to ensure submitted proposals met the font size requirement.
Thomas hopes the Supreme Court places both Reproductive Freedom and Promote the Vote on the November ballot, and he also hopes the court's opinion will "give good direction to the Board of Canvassers what their real role is," which does not include abrogation or readability.
Thomas and Pirich agreed that both groups had the necessary signatures and the BSC should have given its blessing.
Thomas said there's too much indirect contact between petitioners, challengers and the BSC members, the latter of whom are not appointed to represent their political party, but to implement the laws on behalf of citizens. That message, he noted, from the Court “might be seen as naive,” but it's the only way the system will work.
“The easy answer is if the Court tells the board you're bean counters, go count the signatures and be done with. That takes the Board out of the strategy of how to slow down or kill a petition and then those who are opposed can go to court and argue their legal issues,” he said. "The Board is basically nullifying itself, abdicating its responsibility and allowing the courts to be the deciders.”
Pirich noted: “In my humble opinion … I'm not sure that there's any violation of the provisions of the election code with regard to the statutory requirements.”
Reproductive Freedom seeks to enshrine abortion rights into the state Constitution, while Promote the Vote would, in part, recognize the fundamental right to vote without harassing conduct.
