Voting rights, campaign finance ballot groups challenge petition law

By: - May 23, 2019 7:01 pm

Jocelyn Benson in Detroit, April 11, 2019 | Ken Coleman

Voting rights and campaign finance ballot groups on Thursday filed a legal complaint challenging a law that makes it more difficult for groups to gather signatures for statewide ballot measures.

Dana Nessel | Andrew Roth photo

This comes after Attorney General Dana Nessel issued an opinion Wednesday arguing that key sections the Lame Duck law are unconstitutional.

The law, approved by Republicans last year, “should be declared unconstitutional because it burdens and limits the exercise of self-executing constitutional rights” and oversteps the Legislature’s authority, according to a complaint.

That was filed by the League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, which want to launch a campaign finance ballot drive, and two voters, the Associated Press reported. Michigan Secretary of State Jocelyn Benson is the defendant.

The legal complaint was filed in the state Court of Claims and may end up determining how ballot committees gather signatures for statewide referendums this summer.

The lawsuit asks the Court of Claims to permanently freeze the new law and challenges other sections forcing people gathering signatures to disclose whether they are paid to do so or are acting as volunteers, among other problems the groups identify.

Rick Snyder and Brian Calley at their year-end press conference, Dec. 11, 2018 | Ken Coleman

Some ballot groups are frustrated by the lack of legal clarity because the way they gather signatures this summer could be open to legal challenge by groups that might be opposed to their initiatives.

The original bill, sponsored by state Rep. James Lower (R-Greenville) and signed into law by GOP former Gov. Rick Snyder, restricted the number of petition signatures that groups can gather from a single congressional district to 15 percent of the total number of signatures gathered.

Amber McCann, spokeswoman for state Senate Majority Leader Mike Shirkey (R-Clarklake), said the Senate is reviewing its options after the Democratic AG’s legal opinion. But McCann advised groups to continue following the law — not Nessel’s opinion.

Amber McCann | Michael Gerstein photo

Benson’s office, meanwhile, is gearing up to issue new guidance to ballot committees that reflects the attorney general’s opinion.

“I don’t believe we’ll seek clarification because we don’t believe anybody should be following it,” said McCann. “We prefer people to follow the law.”

But Nessel’s opinion is legally binding for state agencies, including the Secretary of State, which will revise its legal guidance to groups planning to potentially circulate petitions this summer like the anti-abortion Right to Life of Michigan.

Whether groups will need to follow that guidance, however, may have to be resolved in court, said University of Michigan law professor Sam Bagenstos in an interview before the suit was filed. He submitted written comment on the law to the attorney general’s opinions division on behalf of the American Civil Liberties Union (ACLU).

“The attorney general’s opinion is binding on state agencies, so Jocelyn Benson does have to follow it,” said Bagenstos, who ran unsuccessfully for the Michigan Supreme Court as a Democrat last year.

Sam Bagenstos
Law professor Sam Bagenstos

“It wouldn’t at all be surprising if you saw some group that wanted to circulate petitions this summer wanting to go to court to make sure they knew what the rules are,” he continued, which is what ended happening on Thursday.

Last week, a committee called Michigan Values Life filed paperwork with Benson’s office to begin a petition drive that would ban the evacuation and dilation abortion procedure if Democratic Gov. Gretchen Whitmer vetoes Republican-sponsored legislation with the same intent. Whitmer has promised to do so should a bill cross her desk.

Right to Life of Michigan’s legislative director, Genevieve Marnon, said the lack of legal clarity is “concerning.” But she said her group is not planning to ask a judge to clarify the issue, and intends to comply with the guidance that Benson’s office issues — which will be in line with the attorney general’s opinion.

“We’re functioning under the good faith of the secretary of state and the Bureau of Elections that we’ve gathered our signatures according to the law,” she said.

James Lower

Quicken Loans founder Dan Gilbert is meanwhile planning to launch a ballot initiative proposing no-fault auto insurance reform, should the governor and Legislature fail to reach a deal.

As the bill sponsor, Lower not surprisingly said he does not at all agree with Nessel’s reasoning. He said that he does hope the courts soon decide whether it’s acceptable for ballot committees to gather 15 percent or more of their signatures from a single congressional district, along with providing clarity on other provisions Nessel found unconstitutional.

“It’d be nice to have that settled sooner rather than later,” Lower said.

Michigan Advance reporter Nick Manes contributed to this report.

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Michael Gerstein
Michael Gerstein

Michael Gerstein is a former Advance reporter covering the Governor's office, criminal justice and the environment.