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Saturday, September 10, 2022
By Michael Nichols
Categories: Michael J. Nichols
A contentious week long legal fight over whether to place two ballot proposals before voters this November came to an end on Thursday. The Michigan Supreme Court ordered the Secretary of State to certify the petitions sponsored by Promote the Vote and Reproductive Freedom for All. On August 31, 2022, the Board deadlocked 2-2 on a motion to place the two initiatives on the ballot. Board Chair Anthony Daunt and Board Member Richard Houskamp voted against the two proposals saying that they did not meet the requirements set forth by the Michigan Election. Law, MCL 168.1,et seq.
As it pertained to the Promote the Vote initiative, which seeks to add further voting rights protections into the Michigan Constitution, the opposing Board Members stated that the petition did not comply with the requirement that ballot proposals state any current laws which may be amended or abrogated by the initiative. Opponents of the measure claimed that the petition should have stated that the initiative would have done away with “Election Day” as it is defined in our state constitution because the proposal would allow for 9 days of early voting. The Supreme Court refused those arguments, with Justice Elizabeth Welch writing to explain that Election Day will still exist as the date on which votes are counted and therefore, did not require any special statement in the petition language. The court ruled 5-2 in favor of placing the measure before voters.
The more contentious debate over the past week has centered around whether to allow the Reproductive Freedom for All petition to reach the ballot. The measure would make reproductive freedom a fundamental right under the Michigan Constitution and effectively adopt the Roe v Wade standard of fetal viability. The ballot measure turned in 753,759 signatures in July, which is the most of any ballot initiative in state history. Proponents claim that they actually received over 911,000 signatures, but that many did not meet the group’s internal quality control for accuracy prior to submission. The Board again deadlocked 2-2 on the basis that Members Daunt and Houskamp did not believe the proposal had sufficient spacing between words. Critics argued that the manner in which the petition was printed left little room between some written words, despite spaces being present in electronic copies provided to the Board.
The majority of the testimony heard by the Board during its August 31st meeting was from people who were opposed to the RFFA measure, with many attacking the content of the proposal rather than the form and signatures as is required under the Michigan Election Law.
As noted by the Michigan Supreme Court in its order issued Thursday, the state’s election laws are silent as to what constitutes a “proper” amount of spacing between words. This author collaborated with attorneys Sujata Raman and Heather Cummings of Novi to write and submit an amicus brief on behalf of advocacy organization Michigan United, as well as over a thousand people who declared they had signed the RFFA petition knowing what it said and without any confusion. The Court granted our motion to file an amicus brief and the Chief Justice made note that opponents to the proposal failed to produce a single person who claims they were confused of mislead by the text of the proposal. In contrast, we provided the court with 1,295 people who stated to the contrary.
In a concurring opinion by Justice Richard Bernstein, he made reference to the fact that, as a person who is blind, visual spacing between words has little impact on his ability to read and understand language.
Dissenting opinions offered by Justices Brian Zahra and David Viviano largely followed the arguments of Board Members Daunt and Houskamp, and stated they would have denied the request to compel the Secretary of State to place the initiatives on the ballot.
On Friday, September 9, 2022, the Board of State Canvassers acted on the orders from the Supreme Court and voted 4-0 to place both Promote the Vote and Reproductive Freedom for All on the ballot in November. The Board had previously designated Promote the Vote as Proposal 2, and Reproductive Freedom for All as Proposal 3.