Michigan’s attorney general said Wednesday that a Republican-enacted law making it harder to put proposals on the statewide ballot is unconstitutional, declaring that lawmakers had no authority to impose a geographic limit a circulating petitions.
Democrat Dana Nessel’s opinion binds state officials unless it is reversed by a court. A legal fight is expected soon, because groups want clarity before launching ballot drives as soon as this summer.
The law was enacted in December’s postelection “lame-duck” session, and followed an unprecedented maneuver by GOP lawmakers and then-Gov. Rick Snyder to weaken minimum wage increases and paid sick time requirements that began as ballot initiatives. The law also came a month after voters passed three Democratic-backed proposals to legalize marijuana for recreational use, curtail the gerrymandering of congressional and legislative districts, and expand voting options.
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 prevents ballot committees from solely targeting the most heavily populated, more Democratic urban areas.
Nessel wrote that the “plain language” of the state constitution cannot be interpreted to authorize the 15% limitation or any distribution component, adding that the requirement “denies many registered electors the right to have their signatures counted.”
But Republican State Representative Jim Lower, who sponsored the bill, said the requirement made sure the whole state had a voice.
“If you’re getting something on the ballot statewide, it makes sense to get input from voters, whether they’re in Detroit, or the U.P., or in Grand Rapids, or all throughout the state,” he said.
Democratic Secretary of State Jocelyn Benson sought Nessel’s opinion in January.
“Based on our review, this new law clearly violates the Constitution on several — but not all — fronts,” Nessel said in a statement. “With these issues resolved, Secretary Benson and her team can now go forward in the work they need to do in managing Michigan’s election process.”
The law is backed by business groups and Republicans who say it adds much-need transparency and accountability to the petition-gathering process and ensures statewide input earlier on ballot drives often funded by out-of-state interests.
“I don’t think anybody’s surprised,” said Lower “I disagree with the conclusions she has come to, and I think it will be litigated.”
He said ballot drives should be grassroots-driven, statewide efforts, and it makes sense to require that groups collect signatures more broadly instead of targeting one area of the state.
Amber McCann, spokeswoman for Republican Senate Majority Leader Mike Shirkey, said it is no surprise that Nessel “disagrees with and disregards state law,” adding that he is confident in the law’s constitutionality.
Nessel said others parts of the law are unconstitutional, too, such as a requirement that each petition indicate whether a circulator is paid or a volunteer.
Lower said that part adds transparency to the process.
“I think it is in the interest of the public to know who’s funding these campaigns,” he said.
Other provisions, like one invalidating all signatures on a petition sheet circulated by someone who has provided false or fraudulent information, do withstand constitutional scrutiny, she said.
Benson said she will review the opinion and update guidance to potential petition sponsors, circulators and voters.
“Both the Michigan Constitution and the First Amendment to the U.S. Constitution protect Michigan citizens’ right to amend our laws or state constitution through direct citizen petitions,” she said. “I am grateful to Attorney General Nessel for clarifying the constitutional infirmities of Public Act 608.”