Michigan Attorney General Dana Nessel (D) rules ballot measure distribution requirement unconstitutional
Michigan Attorney General Dana Nessel (D) issued a legal opinion last week stating that the distribution requirement and other provisions affecting the state's initiative process passed in 2018 are unconstitutional. The attorney general’s 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. Nessel’s opinion is binding on state officials unless a court ruling overturns it.
On December 31, 2018, Gov. Rick Snyder (R) signed Michigan House Bill 6595, which limited the number of ballot initiative petition signatures collected in any one congressional district to 15% of the total required. This limit effectively would require that petition signatures must be obtained from at least seven of the state’s 16 congressional districts. It also required that petitions disclose whether the petitioner is paid or volunteer and made other changes regarding petitioners, valid signatures, and the timeline for certification.
In the state Senate, 26 Republicans voted in favor of the bill, and one Republican joined all 11 Democrats in opposition. In the House, 56 Republicans were joined by one Democrat in voting to approve it. Five Republicans and 42 Democrats were opposed.
Besides Michigan, 16 other states have laws imposing distribution requirements that require that ballot measure petitions be signed by a minimum percentage of voters from different political subdivisions in order for the ballot measure to qualify for the ballot. This requirement can be based on a state’s counties, congressional districts, or state legislative districts.
Nessel’s opinion stated 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. She cited a 2018 Michigan Supreme Court ruling that held 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.”
Rep. Jim Lower (R)—a sponsor of HB 6595—said to the Washington Post in response, “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 that spreading signature gathering efforts out across more of the state is a common-sense requirement and demonstrates that a proposed initiative has broader support.
Michigan voters approved three citizen initiatives in 2018:
- 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.
Michigan is currently under divided government as Republicans control both chambers of the state legislature and Gretchen Whitmer (D) is governor. In the 2018 elections, Democrats were elected governor, attorney general, and secretary of state—all offices held by Republicans going into 2018.
In the attorney general race, Nessel defeated Tom Leonard (R) and three other candidates to succeed Bill Schuette (R), who was term-limited. Nessel received 49.0% of the vote to Leonard's 46.3%. In the secretary of state election, Benson defeated Mary Treder Lang (R) and two other candidates to succeed Ruth Johnson (R), who was also term-limited. Benson received 52.9% of the vote to Lang's 44.0%.
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