Board faces suit after approving ‘defective’ anti-Whitmer petition language

Gov. Gretchen Whitmer gives an update on COVID-19 | Gov. Whitmer office photo

The first major right-wing ballot petition aimed at permanently limiting Gov. Gretchen Whitmer’s executive powers to clear the first hurdle with the Board of State Canvassers is being challenged in court, just 10 days after it received the go-ahead to collect signatures.

The “Keep Michigan Safe” committee, led by former Republican state Sen. and U.S. Rep. Joe Schwarz, filed the lawsuit Tuesday in the Court of Appeals seeking to have Unlock Michigan’s petition withdrawn by the board. The suit is the first of its kind, and alleges clear violations of both recently-adopted petition rules and long-held state standards for petition language.

Joe Schwarz

“It’s egregious in that the wording in it is inappropriate and incorrect,” said Schwarz, a Battle Creek physician.

The approved petition summary, which is also the main language of the petition itself, reads:

“An initiation of legislation to repeal 1945 PA 302, entitled “An act authorizing the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto; and to prescribe penalties,” (MCL 10.31 to 10.33).”

Keep Michigan Safe also claims the Board of State Canvassers, which is split evenly between Democrats and Republicans, did not follow proper public notice procedures in approving the petition wording.

Unlock Michigan is the most prominent of several anti-Whitmer campaigns that have popped up in the state since the COVID-19 outbreak began in March. 

“The lawsuit is a frivolous attempt to discourage our army of volunteers from circulating petitions. But a bogus lawsuit is not going to slow us down,” Unlock Michigan spokesperson Fred Wszolek said in an email.

Wszolek is a consultant who is well-known in Michigan GOP politics, but he resides in and is registered to vote in South Carolina.

Unlock Michigan Facebook ad

Unlock Michigan has a window of 60 days within the next 180 days — roughly six months — to collect the 340,047 required signatures.

If the group succeeds in collecting that number of valid signatures, the petition likely will be adopted by the GOP-led Legislature, bypassing Whitmer’s approval. In the off-chance that it is not adopted by the Legislature, it would go in front of voters on the 2022 general election ballot.

The Unlock Michigan petition specifically seeks to repeal one of the two long-established state laws Whitmer has used as the basis for her emergency orders to fight COVID-19.

The 1945 law in question, the Emergency Powers of Governor Act, allows the governor to declare a state of emergency without legislative approval and make the call as to when that emergency is over.

Mark Brewer, former chair of the Michigan Democratic Party and current attorney for Keep Michigan Safe, says Unlock Michigan failed to both provide necessary context for voters in the petition language and plainly describe what effect the measure would have.

“The summary should disclose the effect of repealing this law, like: the governor’s emergency powers will be significantly reduced. Her declaration of emergency will be invalid. The executive orders will be void. And her toolbox for dealing with emergencies – or any governors dealing with emergencies in the future – will be significantly reduced,” Brewer said.

“That’s nowhere to be seen. That’s nowhere described in the summary.”

Board OKs petition language to yank governor’s emergency powers

The lawsuit also notes that as of just a few years ago, petitions up for review by the Board of State Canvassers must include a 100-word summary separate from the ballot language that describes the purpose of the initiative. Brewer says Unlock Michigan’s summary merely regurgitates the already-muddled legalese of the petition language itself, violating that rule.

“What happened here was, the summary simply repeats the text of the proposal, so the summary adds nothing to voters’ understanding of what this means,” Brewer said. “When the Legislature said, write a summary and put the text in, they meant two different things. So by just repeating the text of the proposal, the Board of Canvassers violated the legislative standards.”

Brewer added that the panel violated procedures by failing to make proper public notice of the petition’s language.

“If you look at past board agendas, you will see that the board says, we’re going to look at the form and we’re going to look at the summary. Last week, they said ‘summary.’ They never disclosed they were going to consider the form. So that’s another reason why the petition needs to be tossed out and the process needs to start over,” Brewer said.

The four-member board is composed of Chair Jeannette Bradshaw and Member Julie Matuzak, both Democrats, and Vice Chair Aaron Van Langevelde and Member Norman Shinkle, both Republicans.

Republican compares Whitmer mask order to Soviet-era East Germany

Schwarz has headed the Keep Michigan Safe campaign since its launch in early July. He has left the GOP since losing his primary in 2006 to now-U.S. Rep. Tim Walberg (R-Tipton) and endorsed Democrats Hillary Clinton in 2016 and Whitmer in 2018.

He says the primary goal of his group’s efforts is to make sure Michiganders can stay safe from COVID-19 while also exercising their right to vote.

The committee backs absentee voting and rallies against misinformation about both it and COVID-19, most often pushed by the right-wing and, notably, President Donald Trump.

Schwarz is concerned that many anti-Whitmer petition campaigns like Unlock Michigan are indicative of just how widespread misinformation about COVID-19 has become.

“If that initiative were ever to pass and mandate that things be opened up irrespective of what the professionals say, it would be a disaster,” Schwarz told the Advance.

“Now, I don’t think it would ever pass, but just the fact that it’s out there is, I feel, a dangerous sign because it shows me that … there’s a number of individuals out there who really don’t understand what’s going on and aren’t thinking this thing through. And we have to.”

Gov. extends emergency declaration as COVID-19 cases rise

Schwarz and his committee are supportive of Whitmer’s efforts to combat COVID-19 in Michigan by whatever executive powers she deems necessary. Schwarz, an otolaryngologist, says Whitmer has made many tough, but critically important decisions since the start of the state’s outbreak.

“You know, it’s not pleasant. I’m not happy that I can’t go to my favorite restaurant and have a cold beer and a chili dog. … But the governor’s doing the right thing and the governor is taking the scientific evidence, the medical evidence as it is there, and she is using it correctly,” Schwarz said.

“And she’s not happy about having to do this, either, but she’s trying to protect Michiganders,” he added.

Whitmer last month called Unlock Michigan’s petition “irresponsible, dangerous and foolish” during the COVID-19 crisis. Michigan now has more than 71,100 cases and 6,000 deaths.

Brewer is hopeful that the lawsuit will successfully prevent Unlock Michigan from moving forward with collecting signatures – at least with the petition’s current language.

“We think the lawsuit has merit,” Brewer said. “Obviously, we will make our arguments and the court will hear us out. But we think this is a strong case. This is a defective petition that needs to be done over.”