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Nessel Opinion Determines Portions of 2018 Election Law Unconstitutional

LANSING – In response to an opinion request submitted earlier this year by Michigan Secretary of State Jocelyn Benson, Attorney General Dana Nessel has determined that portions of Public Act 608 of 2018 – which was passed during a hasty lame duck session – failed to meet constitutional requirements.  

Benson sought the opinion shortly after taking office, saying, “Public Act 608 establishes new grounds for rejecting otherwise valid petition signatures, including the failure to comply with the limit on the number of signatures per congressional district, the requirement to file a paid signature gatherer’s affidavit prior to gathering signatures, and the circulator’s obligation to check a box indicating whether he or she is a paid or volunteer signature gatherer.” Benson asked for an opinion clarifying whether these and other provisions in the new law are constitutional as her department prepares to implement changes required by the new law. View the full opinion here.

“Several senior staff contributed to the research, analysis and preparation of this opinion,” said Nessel. “Based on our review, this new law clearly violates the Constitution on several – but not all – fronts.  With these issues resolved, Secretary Benson and her team can now go forward in the work they need to do in managing Michigan’s election process.”

Attorney General Nessel’s opinion – OAG No. 7310 – found several aspects of the new law unconstitutional:

  • 15 percent signatures per Congressional District. Under Michigan’s Constitution, advocates to adopt or reject laws or to propose constitutional amendments must gather signatures on petitions to get those proposals on the ballot.   PA 608 added a new limit on voters’ ability to support those petitions by requiring that no more than 15 percent of the total number of signatures counted in support of a petition can come from any one of Michigan’s 14 congressional districts.

    This new requirement is unconstitutional because it creates an obstacle for voters without any support in the Constitution itself.  The Michigan Constitution gives Michiganders the right to support change in the law, and while the Legislature can write laws to implement the process, the Legislature cannot cut voters out of the process.
  • County Forms v. Congressional District Forms. To accommodate the new 15 percent signature limitation by Congressional district, PA 608 required the SOS to create petition forms based on congressional districts rather than counties.

    The opinion concludes that with the signatures-by-district requirement having been found unconstitutional, the Legislature would not have intended the use of district-based petition forms.
  • Circulator Affidavit and Check Boxes.  As enacted, PA 608 requires that a paid signature gatherer file an affidavit with the Secretary of State indicating they are a paid signature gatherer before circulating any petition sheets and that any signatures obtained before that affidavit is filed are invalid and won’t be counted. This singles out paid circulators with no apparent valid state interest in doing so.  PA 608 also requires that the petition forms have a circulator disclosure statement that has “check boxes” on the form for the signature gatherer to indicate they are either a paid or volunteer gatherer.

    The opinion concludes that focusing on petition circulators rather than proponents of the petition, singling out paid circulators with a separate procedural hurdle, and requiring “check boxes’ that could lead to circulator harassment, are all new requirements that fail to withstand constitutional concerns aimed at preserving free-speech rights. 

A number of PA 608’s provisions were found to withstand constitutional concerns:

  • Falsification of Certificate and Catchall Form Mistakes.  The new law states that if the circulator provides false or fraudulent information on the petition sheet, it invalidates all the signatures on the petition sheet. The new law also includes a general provision that any form or content mistakes invalidate all signatures on the sheet.

    The opinion finds that the substantial interest of the State in promoting the integrity of the process outweighs the potential burden imposed on petition sponsors and electors.
  • Optional Approval of Petition Form. PA 608 establishes a mechanism for the Board of State Canvassers to set and approve the summary of the purpose of the petition and, if that is done, then the Board cannot later consider a challenge of the petition based on the summary – but it can take up to 30 days for the summary approval process to take place.

    While the Legislature likely intended to create a safe harbor limiting some challenges before the Board of State Canvassers, the opinion recognizes that this additional step is optional and need not be taken if proponents are concerned they will have insufficient time to gather signatures. Consequently, the opinion concludes that this provision is constitutional.
  • Challenges to the Board Determination go to the Supreme Court.  PA 608 requires that a challenge to the Board of State Canvassers’ determination of petition sufficiency must be filed in the Michigan Supreme Court (rather than the Court of Appeals). 

    The opinion finds that this requirement is constitutional but notes that the Supreme Court may choose to direct the challenge to the Court of Appeals.

    As written, the statute also directs the Michigan Supreme Court to advance the case on its docket “for the earliest possible disposition.”

    The opinion recognizes that this directive to the Michigan Supreme Court violates separation of powers principles as the Supreme Court is the branch of government with authority to implement the rules of practice and procedure for the State’s courts, including its own docket.

During the process of preparing this opinion, the Opinions Division received written comments from Samuel R. Bagenstos and Sharon Dolente on behalf of the American Civil Liberties Union Fund of Michigan, and from Patrick Anderson.