Lying to get petition signatures is legal in Michigan. Can that change without hurting free speech?

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As one of 26 states that allow citizen-led ballot initiatives, Michigan’s petition process makes it relatively easy for citizens to enact — and sometimes reject — laws passed by the state Legislature.

It also is easy for circulators to mislead voters, as Michigan is just one of a few states that does not prohibit lying about the contents of petitions — or any other unethical behavior that could be used to collect signatures from unwitting Michiganders.

State Sen. Jeremy Moss (D-Southfield) has been trying to change that since his first term in the state House from 2015 to 2016.* He says the issue contributes to Michigan ranking last on ethics and transparency laws, but critics — including the American Civil Liberties Union (ACLU) of Michigan — say reforming the process could curtail certain First Amendment freedoms.

The issue has been thrust into focus once again this year as a number of right-wing activists, frustrated by Gov. Gretchen Whitmer’s emergency orders to contain COVID-19, have formed petition efforts to either recall Whitmer and Attorney General Dana Nessel, limit Whitmer’s emergency powers or otherwise alter laws to shift more authority to the GOP-led state Legislature.

The most prominent ballot campaign comes from the “Unlock Michigan” group, whose measure seeks to repeal the 1945 Emergency Powers of Governor Act and thus strip Whitmer of certain emergency authorities.

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The Board of State Canvassers approved the petition. Opponents in the “Keep Michigan Safe” group filed suit against the petition’s allegedly “defective language” that could mislead voters about its intent, which was tossed this week by a Court of Appeals panel. Attorney Mark Brewer, a former Michigan Democratic Party chair, told the Advance they plan to appeal.

“We’ve been on this issue for a while. This ‘Unlock Michigan’ deception is certainly prompting it this time around,” Moss told the Advance.

There have been reports that petition circulators have been telling residents at events like Black Lives Matter protests that their measure actually supports Whitmer.

Whitmer addressed the reports at a press conference on Wednesday, calling the Unlock Michigan effort “dangerous” during the COVID-19 pandemic and criticizing the group for “using unscrupulous measures to try to collect signatures.”

But Unlock Michigan spokesperson Fred Wszolek said, “Our petition circulators are doing their work under giant banners that say, ‘End Whitmer’s Endless Shutdown.’ We aren’t misrepresenting anything.”

He also jabbed the Southfield Democrat, adding, “Our entire proposal is one sentence long. Anybody can read it. Even Sen. Moss!”

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Effort last legislative session

Moss spearheaded the effort to change signature-gathering rules in late 2017 with House Bills 4635, 5208 and 5209. Although they passed by large margins in the House during the 2018 lame duck session, the Senate did not pick up the bills before the end of the year, so they died.

Moss says he plans to reintroduce versions of those bills this fall and hopes that this time, they’ll go all the way.

“It’s a sad fact that you just cannot listen to a pitch. You have to actually read what you sign, because there are people taking advantage of the lack of ethics on this process,” Moss said.

According to an Aug. 5 joint press release from Attorney General Dana Nessel and Secretary of State Jocelyn Benson, this summer has seen an uptick of complaints about deceptive petition circulation.

Nessel warned that Michiganders should read petitions thoroughly before signing, while Benson urged the state Legislature to “make it a crime to intentionally mislead a voter into signing a petition.”

Moss says that Oregon, which has a comprehensive list of long-held laws in place governing ethics for petition circulators, is serving as a guide for his upcoming legislation. He hopes to have a similarly comprehensive list in place for Michigan.

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That would include a law ending the pay-per-signature incentive for circulators, which could lead to unethical behavior in order to collect more signatures, as well as a requirement to disclose whether a circulator is paid or volunteering. Moss says both would increase transparency and give Michiganders more peace of mind about what they are being asked to sign.

Michigan has three types of petitions available for citizens to alter state laws or constitutional amendments. 

The initiative petition, used to propose, enact or reject laws, requires 340,047 signatures of registered voters. The referendum petition, which is used to approve or reject laws enacted by the state Legislature, requires 212,530 signatures. The constitutional amendment requires 425,059 and is used to amend the state Constitution.

“Other states have figured out a way to restore integrity to the petition circulating process, and Michigan ought to be leading the charge,” Moss said. “Instead, we’re so far behind. Another contributing factor of why we ranked dead last in terms of ethics of all states.”

Free speech concerns

Not everyone agrees with Moss’ efforts. 

That includes the ACLU of Michigan, which Moss says disagrees with him because of free speech concerns. Moss said he is in constant conversation with the group and is usually in line with their views otherwise.

An ACLU spokesperson did not respond to requests for comment.

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Brewer is another opponent of Moss’ effort, although they’ve worked together on other issues.

Brewer declined to comment specifically on the issue of petitioners lying to collect signatures, as he is the lead attorney for the “Keep Michigan Safe” committee opposing the “Unlock Michigan” effort.

Brewer did offer comment on other petition-related rules that Moss wants to introduce, however, calling them “discriminatory provisions” that could make the democratic process less accessible to Michiganders.

“What’s happened in this state over the last couple of decades is that the Republicans in the Legislature have made it more and more difficult for anybody to circulate petitions,” Brewer said. “Many of the laws they’ve attempted to impose have been struck down. And I’m disappointed to see a Democrat aiding them in their efforts to hinder the right of every citizen, no matter what their party, to circulate a petition in the state.”

Banning pay-per-signature and “discriminating against” paid circulators by making them disclose their paid status, Brewer said, would both be “unconstitutional” and “a violation of the First Amendment.”

He added that the courts in Michigan have already spoken on this issue — and if lawsuits are brought against these rules in any other state, they would likely be struck down, too.

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As for any other kinds of regulations on petition circulators, Brewer said he’d need to see them to decide, but is generally wary of rules that limit the process in any way.

Eric Lupher, president of the Livonia-based nonpartisan Citizens Research Council (CRC) of Michigan, echoed Brewer’s view and emphasized that defining and policing the truth will always be a slippery slope.

“The problem really boils down to, who is the arbiter of the truth? Who gets to decide if somebody is lying or telling the truth?” Lupher said, noting that the Michigan Supreme Court was asked to weigh in on this question in 2006 with the Michigan Civil Rights Initiative (MCRI).

The MCRI, approved by Michigan voters at the ballot box in November 2006, mandates that the state of Michigan cannot discriminate against or give preferential treatment to anyone “on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

It passed and went into effect that December, but not before it faced an aggressive legal challenge. An advocacy group first claimed that the MCRI petition used the terms “racial preferences” and “affirmative action” misleadingly, which was rejected ahead of the vote.

The group then sought to prove that the MCRI violated the U.S. Constitution. The Michigan Supreme Court ultimately upheld the MCRI’s constitutionality in 2014.

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“There were allegations that the circulators of petitions at that time were just outright lying to people about what the petitions would do,” Lupher said. “The Michigan Supreme Court at that time said, ‘Look, this is why we’re in America, is that we set up a system where the government doesn’t get to decide what you can say and what you can’t say.’ It’s up to the people to police themselves.”

Lupher added that there are ways to work within the current ballot process to help voters understand what is true and what is not.

The easiest way to do that, he contends, is to enforce Michigan’s new 100-word summary rule for petitions.

Moss says he understands his critics’ concerns, but he remains firm in his belief that Michigan could find a way to make the system better without compromising democratic values.

“I’m open to suggestions to ensure that anything that we pass meets constitutional requirements. Other states have figured out how to make their laws work, and still ensure that both free speech is protected and that there is integrity in our democracy,” Moss said.

“Some of these laws in other states … have been out there [for a while]. We’re just trying to replicate those efforts here in Michigan.”

Correction: The story has been updated with the correct dates for Sen. Moss’ first term.