Attorney General says new law covering petition drives is unconstitutional

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LANSING, MI (AP) Michigan's attorney general says a lame-duck law making it harder to put proposals on the statewide ballot is unconstitutional.
Democrat Dana Nessel's opinion Wednesday binds state officials unless it is reversed by a court. A legal fight is expected.
The law was enacted by Republicans in December's post-election session, and followed their unprecedented maneuver to weaken minimum wage increases and paid sick time requirements that began as ballot initiatives.
The law imposes a geographic requirement on groups trying to gather hundreds of thousands of voter signatures to qualify for the ballot. No more than 15% of signatures can come from any one of Michigan's 14 congressional districts, a restriction that could prevent ballot committees from solely targeting the most heavily populated, more Democratic urban areas.

The Attorney General released the following explanation of her decision:

Attorney General Nessel’s opinion – OAG No. 7310 – found several aspects of the new law unconstitutional:
• 15 percent signatures per Congressional District. Under Michigan’s Constitution, advocates to adopt or reject laws or to propose constitutional amendments must gather signatures on petitions to get those proposals on the ballot. PA 608 added a new limit on voters’ ability to support those petitions by requiring that no more than 15 percent of the total number of signatures counted in support of a petition can come from any one of Michigan’s 14 congressional districts.

This new requirement 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.
• County Forms v. Congressional District Forms. To accommodate the new 15 percent signature limitation by Congressional district, PA 608 required the SOS to create petition forms based on congressional districts rather than counties.

The opinion concludes that with the signatures-by-district requirement having been found unconstitutional, the Legislature would not have intended the use of district-based petition forms.
• Circulator Affidavit and Check Boxes. As enacted, PA 608 requires that a paid signature gatherer file an affidavit with the Secretary of State indicating they are a paid signature gatherer before circulating any petition sheets and that any signatures obtained before that affidavit is filed are invalid and won’t be counted. This singles out paid circulators with no apparent valid state interest in doing so. PA 608 also requires that the petition forms have a circulator disclosure statement that has “check boxes” on the form for the signature gatherer to indicate they are either a paid or volunteer gatherer.

The opinion concludes that focusing on petition circulators rather than proponents of the petition, 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.
A number of PA 608’s provisions were found to withstand constitutional concerns:
• Falsification of Certificate and Catchall Form Mistakes. The new law states that if the circulator provides false or fraudulent information on the petition sheet, it invalidates all the signatures on the petition sheet. The new law also includes a general provision that any form or content mistakes invalidate all signatures on the sheet.

The opinion finds that the substantial interest of the State in promoting the integrity of the process outweighs the potential burden imposed on petition sponsors and electors.
• Optional Approval of Petition Form. PA 608 establishes a mechanism for the Board of State Canvassers to set and approve the summary of the purpose of the petition and, if that is done, then the Board cannot later consider a challenge of the petition based on the summary – but it can take up to 30 days for the summary approval process to take place.

While the Legislature likely intended to create a safe harbor limiting some challenges before the Board of State Canvassers, the opinion recognizes that this additional step is optional and need not be taken if proponents are concerned they will have insufficient time to gather signatures. Consequently, the opinion concludes that this provision is constitutional.
• Challenges to the Board Determination go to the Supreme Court. PA 608 requires that a challenge to the Board of State Canvassers’ determination of petition sufficiency must be filed in the Michigan Supreme Court (rather than the Court of Appeals).

The opinion finds that this requirement is constitutional but notes that the Supreme Court may choose to direct the challenge to the Court of Appeals.

As written, the statute also directs the Michigan Supreme Court to advance the case on its docket “for the earliest possible disposition.”

The opinion recognizes that this directive to the Michigan Supreme Court violates separation of powers principles as the Supreme Court is the branch of government with authority to implement the rules of practice and procedure for the State’s courts, including its own docket.

Copyright 2019 WILX. All rights reserved. The Associated Press contributed to this report.