Nessel: Petition drive law 'puts a limit on the peoples’ voice'

Jonathan Oosting
The Detroit News
The legislation limits the number of petition-drive signatures that can be collected in any single congressional district, a change that opponents say would diminish the constitutional right of citizens to initiate legislation and ballot proposals.

Lansing — Michigan Democratic Attorney General Dana Nessel on Tuesday welcomed a request to review the constitutionality of a new Republican law that will make petition drives more difficult, signalling her intent to "tackle" the request promptly.

Secretary of State Jocelyn Benson, a fellow Democrat also sworn in Jan. 1, formally asked for the opinion earlier Tuesday in a letter. If Nessel finds the law unconstitutional, Benson would not be required to enforce the new petition drive rules, but the dispute is likely to end up in court. 

While drafting the legal opinion could take weeks or months, Nessel criticized the law and said Benson has raised important questions about the rules Republicans introduced and approved late last year. 

“Restricting the right of Michiganders to participate in the political process is a serious subject matter,” Nessel said. The law "puts a limit on the peoples’ voice and that is cause for great concern — something a rushed lame-duck Legislature failed to regard."

The petition drive law limits the number of signatures that organizers can collect from voters in any single congressional district, capping the number at 15 percent of the total required to advance citizen-initiated legislation and ballot proposals.  

Similar rules in other states have survived court challenges, said John Bursch, an attorney and former Michigan solicitor general who vouched for the bill last month in committee on behalf of the West Michigan Policy Forum business advocacy group.

"I certainly hope she's not prejudging the law," Bursch said of Nessel. "I'm sure she wouldn't do that, because she took an oath on Jan. 1 to uphold the Michigan and the U.S. Constitution. So I hope she can set aside her initial reactions and personal feelings about the law and give it a fair shake."

Rep. Jim Lower, R-Cedar Lake, said the geographic caps on signature collection will require "more buy-in from around the state and get more information out to the public on the front end of the process before something is put on the ballot.”

The Michigan Constitution guarantees the right to initiate legislation or propose constitutional amendments through petition drives but does not put any limits on what part of the state signatures can be collected from.

In her letter to Nessel, Benson said the law “establishes new grounds for rejecting otherwise valid signatures,” noting the geographic cap and new requirements for paid signature gatherers. 

The law would require petition sponsors to obtain signatures in at least seven of Michigan’s 14 congressional districts, Benson noted, and sponsors will be required to sort petition sheets by districts and estimate the number of signatures collected from each.

“I am proud that, for more than a century, Michiganders have exercised core constitutional rights in the circulation of initiative, referendum and constitutional amendment petitions,” Benson said in a statement. “I am deeply concerned that the new restrictions enacted late last year … may potentially violate those constitutional rights by adding new burdens and restrictions on the process.”

Lower said House Republicans had “several legal experts” review the proposal last year. He hadn’t read Benson’s request yet but said he’s confident the law is constitutional.

“The big question is, does it in any way take away a person’s ability to use the petition process? And the answer is no, it doesn’t,” Lower said.

GOP former Gov. Rick Snyder signed the proposal into law four days before leaving office, saying it will "promote geographic diversity" similar to the signature-gathering requirements imposed on gubernatorial candidates filing for election. 

The Republican-led Legislature passed the law in the wake of a busy election season that featured several petition drives organized or funded by liberal groups, including minimum wage and paid sick leave initiatives that GOP lawmakers adopted but amended before they reached the ballot.

Michigan voters approved three other ballot measures to legalize recreational marijuana, create an independent redistricting committee and expand options for voting and registration.

Nessel is not required to provide the requested legal opinion, but the attorney general’s office typically prioritizes requests that affect the operation of state government. The process often takes months.

In her request, Benson noted the 2020 election cycle is already underway and said it is important for her office to provide “the appropriate guidance to potential petition sponsors, circulators and voters, so that all may understand how 2018 PA 608 affects their rights.”

An attorney general's opinion binds the conduct of state agencies, so Benson would be "bound to follow" whatever finding Nessel makes, Bursch said. But the opinion would not have any legal effect in court. 

"The courts are free to look at it fresh and decide whether that opinion is right or wrong," he said. "If she decides that for some reason the legislation has a constitutional problem, and a court disagrees, then we'll be right back to enforcing the law."