Nessel: Board’s deadlock on abortion rights ballot proposal sets ‘most dangerous precedent’

By: - September 7, 2022 11:59 am

Dana Nessel | Ken Coleman

Democratic Attorney General Dana Nessel is calling on the Michigan Supreme Court to issue a writ of mandamus to force the Board of State Canvassers to certify the language of the Reproductive Freedom For All (RFFA) constitutional amendment.

Last week, the board deadlocked on whether the spacing between words in the RFFA proposal summary is enough to throw it off the ballot, even though the coalition submitted a record-breaking 730,000 signatures to get on the ballot.

“Republicans on the board have said that a spacing issue or a typographical issue should supersede what so many people in this state deemed to be a fundamental right,” Nessel said during a Wednesday morning online press conference. “I can’t think of anything more offensive and disturbing than that.”

Nessel said the board “effectively created and applied legislation of their own, and by aggrandizing itself, this unelected board has treated the Constitution of this state as an advisory document. 

“And it has stripped the people of their right to amend the Constitution,” Nessel said. 

Abortion rights coalition files suit in Michigan Supreme Court to put question on Nov. ballot

RFFA Attorney Steve Liedel argued last week that the state election law ays nothing about kerning or spacing. 

The RFFA initatitive aims to amend the state Constitution to ensure Michiganders’ right to make and carry out decisions relating to pregnancy, including abortion, birth control, prenatal care and childbirth. Efforts to enshrine abortion rights in the state Constitution began before the U.S. Supreme Court overturned Roe v. Wade in June, but that action energized many Michiganders to make sure this decision ends up on the ballot. 

Michigan has a 1931 law criminalizing abortion on the books, but it is currently on hold as two cases slowly move through the courts. Beyond efforts through the RFFA initiative, there are also currently two lawsuits — one filed by Gov. Gretchen Whitmer, the other by Planned Parenthood of Michigan — to repeal the 91-year-old abortion ban.

Despite recommendation from the Bureau of Elections to certify the proposal, the two Republicans on the Board were persuaded by the opponents’ challenge

“I think this sets the most dangerous precedent I can possibly imagine,” Nessel said. “It would really say that these two unelected members of the Republican party could not just usurp the Legislature in terms of the powers that were provided to them, but really would thwart the will of hundreds and hundreds of thousands of people in the state of Michigan, and I can’t think of anything more undemocratic than that.”

Nessel also said that Republicans may be pushing to knock down this proposal because it is a big driver for Democratic voters to turn up to the voting booth in November. 

“The precedent that would be set here essentially is that any time one of the political parties decides that they don’t like a proposal and they don’t want it to appear on the ballot … either because they don’t want the ballot proposal to pass or they don’t like the fact that it’s likely that it will generate increased turnout … they’re just going to continue to use this every single election with every single ballot proposal and potentially more than that,” Nessel said. 

Republican nominee for Michigan attorney general Matt DePerno campaigns in Lansing on Aug. 27, 2022. | Allison R. Donahue

On Nov. 8, Nessel running for reelection against Republican Attorney General nominee Matt DePerno, who has said he would uphold the state’s 1931 abortion ban with no exceptions for rape or incest. DePerno goes a step further than the state’s abortion ban in saying he also does not support exceptions for abortion even if to save the life of the mother. 

In the past week, Nessel also joined a coalition of 21 attorneys general in filing amicus briefs supporting the federal government’s defense of the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide stabilizing emergency treatment, including abortion, against Texas’ and Idaho’s attempts to broadly exempt abortion care from emergency health care. 

Now that the abortion rights initiative’s fate lies in the Michigan Supreme Court, justices are working on a tight deadline. The court is likely to make a decision before the Secretary of State’s deadline to certify general election ballots for county clerks at 5 p.m. Friday.

Nessel said if the court misses this deadline, voters wouldn’t be able to vote on this ballot proposal until 2024. 

The board also deadlocked Wednesday on whether an initiative to expand voting rights will end up on the Nov. 8 general election ballot. That is also expected to be resolved in the Michigan Supreme Court.


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Allison R. Donahue
Allison R. Donahue

Allison R. Donahue covers education, women's issues and LGBTQ issues. Previously, she was a suburbs reporter at the St. Cloud Times in St. Cloud, Minn., covering local education and government. As a graduate of Grand Valley State University, she has previous experience as a freelance researcher for USA Today and an intern with WOOD TV-8. When she is away from her desk, she spends her time going to concerts, comedy shows or getting lost on hikes in different places around the world.