Understanding the Michigan Supreme Court’s ruling on ballot measures

Welcome to the Friday, Aug. 2, Brew.

By: Mercedes Yanora

Here’s what’s in store for you as you start your day:

Understanding the Michigan Supreme Court’s ruling on ballot measures
Three of five state executive primaries in Missouri are battlegrounds
Did you know that Maine and Nebraska are the only two states that don’t award their Electoral College votes to the presidential candidate who wins the statewide popular vote?

Understanding the Michigan Supreme Court’s ruling on ballot measures

On July 31, the Michigan Supreme Court ruled that it was unconstitutional for the state legislature to adopt-and-amend two 2018 indirect initiated state statutes.

I spoke to our Ballots Editor Ryan Byrne about the ruling and what it means. That conversation has been edited below.

Explain for our readers what an indirect initiated state statute is and how it differs from a direct initiative?

An indirect initiated state statute is a citizen-initiated ballot measure that amends state statute. In simple terms, a state statute is a law written and enacted by the legislative branch of government.

Campaigns supporting the initiative first present the initiative to the state legislature. Legislators have a certain number of days, depending on the state, to adopt the initiative into law. Should legislators take no action or reject the initiative, the initiative is put on the ballot for voters to decide.

A direct initiative, on the other hand, is placed on the ballot once supporters file the required number of valid signatures. This type of measure does not need to go through the state legislature first.

Makes sense; thanks for explaining! Can you now tell me what happened in 2018 and why it resulted in a court case?

Sure thing. In 2018, campaigns presented two indirect initiatives to the state legislature, the Minimum Wage Increase Initiative and the Paid Sick Leave Initiative. Legislators had 40 days to approve the initiatives, have them proceed to the ballot for voters to decide in November 2018, or offer competing ballot measures to appear alongside the initiatives. On Sept. 5 of that year, the Michigan Legislature approved both initiatives, meaning the initiatives did not go to the ballot for voters to decide.

Now here’s where the issue began. Legislators then introduced bills to amend the already-approved initiatives on Nov. 8, 2018. Legislative Democrats voted against the amendments, while most Republicans voted for them. At the time, Michigan had a Republican trifecta, and Gov. Rick Snyder (R) signed the bills into law. Heading into January 2019, Michigan became a divided government due to the election of Gov. Gretchen Whitmer (D).

Michigan One Fair Wage and Michigan Time to Care—the campaigns behind the two initiatives—sued the state. Plaintiffs described the legislative amendments as an adopt-and-amend tactic that violated Section 9 of Article 2 of the Michigan Constitution, which concerns the power of citizens to initiate laws. Defendants argued that nothing prohibited the legislature from amending enacted indirect initiatives.

Okay, now that we know what happened in 2018, can you describe how the case moved through Michigan’s court system?

Of course. The Michigan Court of Claims ruled against the state in 2022, holding that the legislature’s amendments to the enacted initiatives were unconstitutional. The state appealed the ruling and in 2023, the Michigan Court of Appeals reversed the claims court’s decision, ruling that there is no “temporal limit on when the Legislature could amend initiated laws enacted by the Legislature.” The campaigns behind the two affected initiatives appealed that ruling to the Michigan Supreme Court, which agreed to hear the case on Dec. 7, 2023.

On July 31, 2024, the Michigan Supreme Court ruled 4-3 that legislators adopting a citizen-initiated statute, and then amending the initiative during the same legislative session, violated the Michigan Constitution. The decision was along partisan lines, with the court’s four Democrats ruling against adopt-and-amend. The court’s three Republicans dissented.

That seems like a significant ruling. Can you tell me why the majority ruled that way and how the dissenting justices reacted?

Justice Elizabeth Welch (D) wrote the court’s majority opinion, which said, “[W]e hold that Article 2, § 9 provides the Legislature with three—and only three—options upon receiving a valid initiative petition. Any legislative response to a valid initiative petition that falls outside those three discrete options is unconstitutional and impermissibly infringes upon the people’s reserved power.” Those three options are: (1) enact the law “without change or amendment” within 40 days; (2) “reject the proposed law, in which case the proposed law will appear on the ballot;” or (3) propose a competing measure to appear on the ballot alongside the initiative.

Justice Elizabeth Clement (R), in her dissent, wrote, “There is certainly reason to be frustrated by the Legislature’s actions here … But nothing in Article 2, § 9 restricts the Legislature from doing so. And as tempting as it might be to step into the breach, this Court lacks the power to create restrictions out of whole cloth.”

So what of the future of the initiatives themselves? What happens next?

The court ordered that the ballot initiatives go into effect on Feb. 21, 2025, with an amended gradual increase for the minimum wage initiative through 2028.

The Minimum Wage Increase Initiative will increase the state’s minimum wage to $12 per hour, plus an adjustment for inflation, and phase out the minimum wage for tipped employees, which is less than the general minimum wage. The measure also requires overtime compensation of 150% for employees who work in excess of 40 hours during a workweek. Currently, Michigan’s minimum wage is $10.33 per hour.

The Paid Sick Leave Initiative will require employers to provide employees with paid sick time. Employees of small businesses, defined as employers with fewer than 10 employees, will accrue at least 40 hours of paid sick time per year. Employees of businesses with 10 or more employees will accrue at least 72 hours of paid sick time per year.

This year, voters in Alaska will be voting on a paid sick leave initiative, and signatures have been submitted for paid sick leave initiatives in Missouri and Nebraska as well.

And how about the plaintiffs and defendants? Is there a partisan bend to who is happy with the ruling and who is not?

Well, the plaintiffs, which are the campaigns that supported the initiatives, are certainly happy. These campaigns are associated with progressive organizations, and, if you remember, legislative Democrats voted against amending the original initiatives. In general Democrats are happy with the ruling.

Attorney General Dana Nessel (D) said, “The legislature cannot manipulate its power to undermine the will of the people. This ruling sends a clear message that elected officials cannot disregard the voices of their constituents. I am glad to see the court recognize and respect that the people reserved for themselves the power of initiative, a crucial tool meant to shape the laws that govern them.”

And most Republicans are likely upset with the ruling considering most of them voted in favor of amending the initiatives. The court has also struck down a tactic they used with indirect initiatives. Presumably, Democrats could have used this tactic as well, but I don’t believe they have done so in recent history, likely because the legislature was either Republican controlled or divided from 1983 to 2023.

Senate Republican Leader Aric Nesbitt (R) said, “The Legislature used its ability to take necessary action to ensure the minimum wage increase and new paid sick leave rules worked for all Michiganders in 2018. This decision flies in the face of that authority and Michigan businesses and employers.”

Thank you so much for the interview and for breaking down a sometimes complex but always interesting topic! Before we conclude, can you point our readers in the direction of any other ballot measure-related court rulings?

My pleasure! We’ve seen four other major state court rulings that have affected the ballot measure process this year. These rulings were in Arkansas, Colorado, Montana, and Utah. If you want to read more, click here.

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Three of five state executive primaries in Missouri are battlegrounds

Continuing our coverage of statewide primaries, today we dive into elections in Missouri. The state is holding primaries for congressional (U.S. Senate and House), state executive, state legislative, and municipal offices on Aug. 6. Voters will also decide on three local and two statewide ballot measures.

Why it matters at the national level

In the U.S. Senate, Democrats currently have a majority. There are 47 Democrats, 49 Republicans, and four independents. Three independents caucus with the Democratic Party. Another independent, Sen. Kyrsten Sinema, counts toward the Democratic majority for committee purposes. Thirty-four of 100 seats are up for election, including one special election. Of the seats up for election in 2024, Democrats hold 19, Republicans hold 11, and independents hold four. Both U.S. senators from Missouri are Republicans.

In the U.S. House, Republicans currently have a 220-212 majority with three vacancies. Missouri’s House delegation includes two Democrats and six Republicans. We’re following two of Missouri’s U.S. House primaries as battlegrounds:

Notable primary elections

U.S. Senate

Voters in Missouri will elect one member to the U.S. Senate on Nov. 5. Incumbent U.S. Sen. Josh Hawley (R) is running for re-election, and is uncontested in the Republican primary. Four candidates are running in the Democratic primary: Mita Biswas (D), December Harmon (D), Lucas Kunce (D), and Karla May (D). W.C. Young (L) is running uncontested in the Libertarian primary.

U.S. House

Forty-three candidates are running for Missouri’s eight U.S. House districts, including 16 Democrats and 27 Republicans.

Here are some other highlights from this year’s filings:

The 3rd Congressional District is the only open district. Two districts were open in 2022. None were open from 2014 to 2020.
Incumbent Rep. Blaine Luetkemeyer (R-03) is retiring.
Two congressional districts—the 1st and the 3rd—are tied for the most candidates running in a district this year. Four Democrats and five Republicans are running in the 1st Congressional District, and two Democrats and seven Republicans are running in the 3rd Congressional District.
- This is expected given the two are battlegrounds. Roll Call ranked incumbent Cori Bush (D-01) as the sixth most vulnerable U.S. House incumbent in the nation. Bush’s vulnerability has made the race that more attractive for challengers. As for the 3rd District? Open districts typically attract a higher number of challengers given the lack of an incumbent and their expected party backing.
Twelve primaries—six Democratic and six Republican—are contested this year. Between 2014 and 2022, there was an average of 11.6 contested primaries per year.

State executive

Missouri is holding primaries for governor, lieutenant governor, attorney general, secretary of state, and treasurer. We are covering three of these races as primary battlegrounds.

Republican gubernatorial primary: Nine candidates are running in the primary as incumbent Gov. Mike Parson (R) is term-limited. Jay Ashcroft (R), Bill Eigel (R), and Mike Kehoe (R) lead in polling and media attention. Former Donald Trump (R) endorsed all three candidates. The Kansas City Star’s Jonathan Shorman noted recent polling indicating a tight race, saying, “In the absence of clarity, Republicans and political observers are arguing over which candidate benefits from the endorsement the most in the final week of the race. … If the Trump endorsement moves even a small number of voters [for one candidate over the others], it could prove decisive.”
Republican secretary of state primary: Eight candidates are running in the primary as incumbent Jay Ashcroft is running for governor. Valentina Gomez (R), Denny Hoskins (R), Dean Plocher (R), and Shane Schoeller (R) lead in media attention and fundraising. Each candidate has said that trust in elections should be a main theme of the race and has proposed different changes to election procedures.
Republican attorney general primary: Incumbent Andrew Bailey (R) and Will Scharf (R) are running in the primary. While Trump has endorsed both candidates, other Republican officials and organizations have split their endorsements between the two. U.S. Sen. Eric Schmitt (R) and Gov. Parson endorsed Bailey. The Club for Growth and Texas Attorney General Ken Paxton (R) endorsed Scharf.

State legislature

First, let’s look at some commentary. Missouri Independent’s Rudi Keller predicted Republican shake ups in the Senate due to redistricting, term limits, and divisions within the party. He wrote, “The Senate, dominated by a Republican supermajority, is beset by GOP factional warfare that has disrupted both this year’s session and those of the past three years. A group that called itself the conservative caucus in 2021 and 2022, before rebranding as the Freedom Caucus, has repeatedly disrupted normal functioning of the Senate. This year, the infighting became so bad several Freedom Caucus members lost committee chairmanships. For the challengers to GOP incumbents, ending those fights is a theme they think will play with voters.”

The same turnover isn’t forecasted for the House primary. Although Keller did note an increase in contested seats compared to 2022: “In the 2022 election, only 69 of 163 districts had both Republican and Democratic candidates. This year, the major parties will both field candidates in 114 districts.”

Now, for the legislature-wide data: there are 180 state legislative seats up for election in Missouri in 2024. Across those, 55 incumbents (22 Democrats and 33 Republicans) did not seek re-election. That is more than the average number of retirements (53) in Missouri from 2010 to 2022. Six Senate and 22 House incumbents were term-limited.

Twenty-seven incumbents will face primary challengers. That is the third-most since 2010, after 2012 and 2022, which each had 35 incumbents facing primary challengers.

There are 68 total contested primaries—19 Democratic and 49 Republican. The average number of contested primaries from 2010 to 2022 was 69.9. The year with the fewest primaries was 2014, which had 49 (16 Democratic and 33 Republican). The years 2010 and 2012 had 86 contested primaries each, the highest number during that span.

Click below to learn about all the elections in Missouri this year!

Keep reading

Did you know that Maine and Nebraska are the only two states that don’t award their Electoral College votes to the presidential candidate who wins the statewide popular vote?

Forty-eight states award all their presidential electors to the presidential candidate who wins the popular vote in the state (this is known as a winner-take-all allocation). Maine and Nebraska, however, take a different approach. They each award two electors to the candidate who wins the statewide popular vote and the remaining electors to the winner or winners of the popular vote in each U.S. House district.

Nebraska has three U.S. House districts, while Maine has two.
Click here to learn more about the Electoral College.