Michigan Attorney General Dana Nessel (D) rules ballot measure distribution requirement unconstitutional

On Wednesday, Michigan Attorney General Dana Nessel (D) released an opinion stating that a distribution requirement and some other provisions restricting the state’s initiative process passed in 2018 were unconstitutional.
Nessel’s opinion is binding for state officials unless a court ruling overturns it. The opinion was requested by Michigan Secretary of State Jocelyn Benson (D), who would have been involved in the enforcement of the new initiative petition rules.
In 2018’s lame-duck legislative session the Michigan State Legislature approved and Gov. Rick Snyder (R) signed Michigan House Bill 6595 (now Public Act 608). HB 6595 (PA 608) created a distribution requirement for initiative signature petitions in Michigan limiting the number of signatures collected in any one congressional district to 15% of the total required. This effectively requires valid signatures from a minimum of seven different congressional districts for a successful initiative petition. The bill also required the disclosure on petitions of whether a petitioner is paid or volunteer; mandated a petitioner affidavit; and made other changes regarding petitioners, valid signatures, and the timeline for certification. In the Senate, 26 Republicans voted in favor of the bill, and all 11 Democrats along with one Republican voted against the bill. In the House, Republicans approved the bill 56-5, and Democrats rejected the bill 42-1.
Nessel’s opinion also declared unconstitutional the requirement that petitioners disclose on petition sheets their paid or volunteer status.
In her opinion, Nessel argued that the distribution requirement provisions of HB 6595 imposed an additional obligation for qualifying an initiative for the ballot beyond what was required or authorized by the Michigan Constitution. Nessel said, “The Legislature cannot impose an additional obligation that does not appear in article 2, § 9 and that curtails or unduly burdens the people’s right of initiative and referendum. Here, the 15% distribution requirement goes beyond a process requirement to impose a substantive limitation on the number of voters within a congressional district whose signatures may be counted under article 2, § 9.”
Nessel also cited Citizens Protecting Michigan’s Constitution v Sec’y of State—a 2018 Michigan Supreme Court ruling—that the initiative and referendum rights “can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises.”
In response to Nessel’s opinion, Rep. Jim Lower (R), who sponsored HB 6595, said, “I don’t think anybody’s surprised. I disagree with the conclusions she has come to, and I think it will be litigated.” Lower argued spreading signature gathering efforts out across more of the state shows broader support for any proposed initiatives and is a common-sense requirement.
Michigan Secretary of State Jocelyn Benson (D) said, “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. I am grateful to Attorney General Nessel for clarifying the constitutional infirmities of Public Act 608.”
Sixteen other states have a distribution requirement for citizen-initiated measures.
Michigan has divided government with Republicans controlling the state legislature and a Democrat controlling the governor’s office. Michigan has a Democratic Triplex. In the 2018 elections, Democrats took control of the offices of governor, attorney general, and secretary of state—offices held by Republicans going into 2018. The 2018 elections broke an existing Republican trifecta and triplex in Michigan.
In the 2018 election cycle, Michigan voters approved three citizen initiatives:
  • a marijuana legalization initiative;
  • a redistricting commission initiative; and
  • an initiative adding eight voting policies to the Michigan Constitution, including straight-ticket voting, automatic voter registration, same-day voter registration, and no-excuse absentee voting.
Three other initiatives qualified for the 2018 ballot: a minimum wage initiative, a paid sick leave initiative, and an initiative repealing the state’s prevailing wage law. But, using Michigan’s indirect initiative process, the legislature passed the initiatives themselves, thereby precluding an election on them. Then, in December 2018, the legislature amended the minimum wage and paid sick leave initiatives.
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