Nessel declares Lame Duck law capping ballot signatures unconstitutional

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

Attorney General Dana Nessel on Wednesday declared unconstitutional key portions of a controversial law that capped the number of petition signatures that can be collected from a single congressional district.

Attorney General Dana Nessel | Susan J. Demas

In a statement from Nessel Wednesday afternoon, the Democrat said that “this new law clearly violates the Constitution on several – but not all – fronts,” including its main provision 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.”

The decision comes after Democratic Secretary of State Jocelyn Benson requested that Nessel’s office review the law shortly after taking office, citing concerns about its legality as the Department of State prepared to implement the changes it required.

In a statement today, Benson applauded Nessel’s action.

Jocelyn Benson at a press conference in Flint, Feb. 21, 2019 | Ken Coleman

“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,” Benson said. “I am grateful to Attorney General Nessel for clarifying the constitutional infirmities of Public Act 608. We will carefully review her opinion and update our guidance to potential petition sponsors, circulators and voters accordingly.”

The law was introduced as House Bill 6595 during last year’s Lame Duck legislative session by state Rep. James Lower (R-Greenville) and co-sponsored by state Rep. Aaron Miller (R-Sturgis).

At the time, Lower said the bill would provide “more transparency, more accountability, [and] more input from voters prior to an initiative being placed on the ballot.”

James Lower

Speaking with the Detroit News Wednesday about the opinion, Lower said that he wasn’t surprised.

“The fact it’s taken this long to come out is actually what’s surprising,” Lower said. “I don’t know if that’s because they were having a hard time justifying their pre-ordained conclusions or what.”

The West Michigan representative said he expects the issue will end up in Michigan’s courts. His office did not respond to a request for further comment.

Lower was also in the news this week for declaring a primary challenge against U.S. Rep. Justin Amash (R-Cascade Twp.) for calling for President Donald Trump’s impeachment.

The Advance reported in December that groups across the ideological spectrum originally opposed Lower’s bill, including Right to Life of Michigan, the American Civil Liberties Union (ACLU), and the environmental group Sierra Club.

In signing it, Republican former Gov. Rick Snyder insisted the bill would “promote geographic diversity in support of ballot proposals.”

The bill was introduced exactly a month after last November’s elections, in which ballot measures legalizing recreational marijuana, creating an independent redistricting commission for the state, and liberalizing various voting laws were all approved by Michigan voters.

Sharon Dolente

In February, the ACLU came out in favor of Nessel’s review of the law limiting signature collection for such proposal. The civil liberties group argued it had discriminatory intent in “interacting with the long record of housing segregation that led African-Americans to be concentrated in those communities,” referring to the densely-populated, largely African-American congressional districts that were most affected by the bill.

Sharon Dolente, voting rights strategist for the Michigan ACLU, said the organization was excited “that the attorney general agreed with the view that we had from the very beginning.”

“It was very disheartening to see this effort to restrict the citizen process after the citizens had successfully put three matters onto the ballot last year and then adopted them all,” Dolente said. “It seemed like this was more intended to punish citizens who stood up … and wanted their voices heard.”

Nessel’s office found that several other aspects of the law could stand, however, including one that invalidates all signatures on a petition “if the circulator provides false or fraudulent information on the petition sheet.”

Michigan Capitol | Susan J. Demas

The announcement comes a week after Right to Life of Michigan said it would launch a petition to ban the evacuation and dilation abortion procedure if Democratic Gov. Gretchen Whitmer vetoes Republican-sponsored legislation as she has promised.

It also follows last weekend’s threat from top lobbyists for Quicken Loans’ Dan Gilbert that he would launch a ballot initiative proposing no-fault auto insurance reform should the governor and Legislature fail to reach a deal.

Right to Life Michigan’s legislative director, Genevieve Marnon, said she hadn’t had time to fully review the opinion yet, but expressed frustration with its timing and said it could delay work on the group’s planned ballot proposal.

“We’ll work within the old law, the new law, any law — it’s just that when you change the rules midstream it becomes a little more difficult,” Marnon told the Advance on Wednesday. “There are [now] a lot of uncertainties, and it’s just not great timing for us, but we will retool and move forward.”

Public Act 608 will stand as law with the portions declared unconstitutional stricken, while those which were not, as described in Nessel’s opinion, will remain.

Advance reporter Michael Gerstein contributed to this report.

Derek Robertson
Derek Robertson is a former reporter for the Advance. Previously, he wrote for Politico Magazine in Washington. He is a Genesee County native and graduate of both Wayne State University, where he studied history, and the Medill School of Journalism at Northwestern University.

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