Shirkey turns to ballot measure before courts to limit Whitmer’s powers

In an apparent reversal of course, Senate Majority Leader Mike Shirkey (R-Clarklake) has at least temporarily stepped back from the idea of a lawsuit against Gov. Gretchen Whitmer that the GOP-led Legislature authorized Thursday.

Now, it appears that Shirkey is instead placing his bets on a ballot petition to reject one of two Michigan laws that Whitmer has used as a basis for her emergency powers during the COVID-19 pandemic that has sickened more than 44,000 and killed more than 4,100 Michiganders.

Unfolding simultaneously is an individual lawsuit from U.S. Rep. Paul Mitchell (R-Dryden), who appears to be taking the matter into his own hands. Mitchell, who is not running for reelection, filed a lawsuit against Whitmer on Monday, arguing that her emergency actions have violated his constitutional rights and the separation of powers in government.

Last week was punctuated by three long days of session, which were peppered with armed conservative protestors coming in the Capitol, condemnations from Democrats for flouting health guidelines and, eventually, a voice vote in both chambers to authorize legal action against the governor.

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But four days after that vote, a lawsuit hasn’t been filed. Shirkey told right-wing talk show host Randy Bishop, a.k.a. “Trucker Randy,” that the lawsuit will “probably” happen next week.

“I think [the ballot petition is] probably the number one priority right now,” Shirkey told Bishop, while appearing on his radio show “Your Defending Fathers” Monday morning. “That allows true representative government … to take over.”

Bishop, a two-time felon who was pushed out of his position as Antrim County GOP chair in 2018, infamously threatened to blackmail one of Shirkey’s predecessors, former state Senate Majority Leader Randy Richardville (R-Monroe), the Macomb Daily reported.

Shirkey told Bishop he looks forward to starting the ballot initiative process “within the next couple weeks.”

However, state House Speaker Lee Chatfield (R-Levering) does not seem to share Shirkey’s views about the ballot initiative.

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“That could be a useful idea for the future, but my current priority is focusing on keeping people healthy and helping everyone get back to their lives as safely and quickly as possible,” Chatfield said in a statement on Monday.

“That’s why we’ve been asking the governor to partner with us. I think the law is already clear that she doesn’t have the powers she’s claiming to have,” Chatfield added.

But many legal experts in Michigan have argued that Whitmer does have those powers, and any lawsuit against her that argues otherwise will likely not prevail. Steve Liedel, former chief counsel to Gov. Jennifer Granholm, said Whitmer is “exercising broad but limited emergency powers granted to her by the legislature.”

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False: The governor is drunk on unfettered power.

Fact: The governor is exercising broad but limited emergency powers granted to her by the legislature consistent with the duty imposed on her by the legislature to cope with the emergency.

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— Steven C. Liedel (@SCLiedel) May 1, 2020

Whitmer’s declarations of a state emergency and disaster cite the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945. The 1945 law, which Republicans want to quash one way or another, allows the governor to take emergency actions without state Legislature approval — and make the call as to when that emergency is over.

The initiative petition now favored by Shirkey, one of three types of petitions that can be used by citizens to alter laws or the state Constitution, would require the signatures of 340,047 registered voters to shoot down the 1945 law.

If Shirkey were aiming to get the initiative on the November ballot, the deadline is May 27, which would appear to be a huge logistical hurdle for a campaign. 

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However, the goal likely isn’t to get a measure before voters. If enough signatures are submitted by the deadline, the Legislature could approve the initiative first under a constitutional provision.

That provision — found in Article 2, Section 9 of the Michigan Constitution – states that if the proposed initiative is found to have sufficient signatures, the Legislature has 40 days to consider it. If it is approved by lawmakers in that timeframe, it becomes law and does not go to the voters. And the governor can’t veto it.

“The public will know if this proposal is moving forward if a ballot question committee is formed as required by the Michigan Campaign Finance Act and if any petition is submitted to the Secretary of State before circulation as the law now requires,” said Liedel.

Liedel said the Legislature has tried this once before, when leaders couldn’t reach consensus on Granholm’s proposed replacement for the Single Business Tax, which set up an epic budget fight in 2007 and led to a brief government shutdown.

“Sometimes these actions have unintended consequences,” Liedel said. He added that the move would also be “be another departure from regular order at the same time some legislators are calling for a return to regular order.”

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If the measure did go before voters, it might face a tough fight.

Whitmer’s handling of the state’s COVID-19 crisis has been largely embraced by Michigan residents. The most recent statewide poll from April 29, conducted by the New York City-based Global Strategy Group, found that 65% of residents approved of Whitmer’s handling of the outbreak.