ACLU: Ballot measure limit law unconstitutional, ‘squelches’ speech

People enter a voting precinct to vote in the Michigan Primary election at Trombly School, August 7, 2018 in Grosse Pointe Park | Bill Pugliano, Getty Images

The American Civil Liberties Union (ACLU) of Michigan says a new law restricting the ballot initiative process is unconstitutional and will result in citizens’ speech being “squelched.”

Dana Nessel

Secretary of State Jocelyn Benson has already requested that Attorney General Dana Nessel consider the constitutionality of the law. The ACLU was asked to weigh in and did so in a 12-page letter obtained by the Advance.

In it, the organization argues that the law, known as Public Act 608 of 2018, violates the state and federal constitutions, as well as the federal Voting Rights Act.

The Republican-led state Legislature passed the measure and it was signed by former Gov. Rick Snyder last December during the frenzied Lame Duck session in which almost 400 bills were passed.

The law, which was sponsored by state Rep. James Lower (R-Cedar Lake), mandates that no more than 15 percent of signatures come from any one congressional district and that any signatures exceeding that would be considered “invalid.” It also requires that paid petition gatherers indicate their paid status and register with the Secretary of State.

James Lower

Supporters of the law, which included many from the business community, argued that it would bring more transparency and accountability. The bill was opposed by groups on the right and left, including Right to Life of Michigan, various unions and the Sierra Club.

The ACLU of Michigan was behind one of the three measures on the November 2018 ballot, Proposal 3, which expanded voting rights by allowing no-reason absentee voting, same-day voter registration and more. The initiative passed with more than two-thirds of the vote.

In the letter to Nessel, the ACLU of Michigan argues that the 15-percent cap “impose significant burdens.

“In districts in which a petition exceeds the 15-percent cap, the signatures will be invalidated — and speech therefore will be squelched,” ACLU lawyers write.

The civil liberties group further said that the new restrictions are effectively a “tax” on direct democracy groups mounting petition drives.

“But even if direct democracy campaigns can ultimately comply with it, the cap effectively imposes a tax on their operations,” the attorneys write. “Campaigns will now be forced to continuously monitor their signature gathering on a district-by-district basis to ensure that they don’t exceed the cap in any district. This will necessary increase the costs of pursuing the ballot initiative, which will limit the ability of ballot-measure campaigns getting their message out.”

Lame Duck protest at the Michigan Capitol, Dec. 12, 2018 | Ken Coleman

The Michigan group also argued that the 15-percent cap will “burden individual voters, who will be deprived of the power to have their signature counted in support of a ballot proposal if too many other voters from their congressional district have already signed.”

And ACLU of Michigan attorneys make the case that African-American residents will be disproportionately impacted by the new law. For example, Michigan’s only majority-Black districts — congressional districts 13 and 14 — are centered in metropolitan Detroit.

“The 15-percent cap achieves its discriminatory effect by interacting with the long record of housing segregation that led African-Americans to be concentrated in those communities. …That leaves 512,237 Black voting-age citizens in those districts who will be barred from signing. That number is over half the number of Black voting-age citizens in the entire state,” the attorneys write.

Jocelyn Benson

The ACLU of Michigan’s letter was signed by seven lawyers. The cooperating attorneys were Eli Savit, Andrew Nickelhoff, Mary Ellen Gurewitz and Sam Bagenstos, who unsuccessfully ran for Michigan Supreme Court in 2018. The ACLU attorneys were Sharon Dolente, Michael Steinberg and Daniel Korobkin.  

In her response to Benson’s request last month for an opinion, Nessel said that “restricting the right of Michiganders to participate in the political process is a serious subject matter.

“PA 608 puts a limit on the people’s voice and that is cause for great concern — something a rushed Lame Duck Legislature failed to regard in passing this law,” she added.

Ken Coleman
Ken Coleman reports on Southeast Michigan, education, civil rights and voting rights. He is a former Michigan Chronicle senior editor and served as the American Black Journal segment host on Detroit Public Television. He has written and published four books on black life in Detroit, including Soul on Air: Blacks Who Helped to Define Radio in Detroit and Forever Young: A Coleman Reader. His work has been cited by the Detroit News, Detroit Free Press, History Channel and CNN. Additionally, he was an essayist for the award-winning book, Detroit 1967: Origins, Impacts, Legacies. Ken has served as a spokesperson for the Michigan Democratic Party, Detroit Public Schools, U.S. Sen. Gary Peters and U.S. Rep. Brenda Lawrence. Previously to joining the Advance, he worked for the Detroit Federation of Teachers as a communications specialist. He is a Historical Society of Michigan trustee and a Big Brothers Big Sisters of Metropolitan Detroit advisory board member.

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