Nessel: GOP petition drive signatures rule is unconstitutional

Jonathan Oosting
The Detroit News
Michigan Attorney General Dana Nessel holds a press conference in April 2019.

Lansing — A new Republican law making Michigan petition drive rules harder includes several unconstitutional elements and inappropriately limits voter participation in the process, Democratic Attorney General Dana Nessel said Wednesday in a formal opinion. 

Nessel deemed at least three portions of the 2018 law unconstitutional, including a requirement that petition groups collect no more than 15 percent of their signatures from any of the state’s 14 congressional districts. 

“The Legislature cannot impose an additional obligation ... that curtails or unduly burdens the people’s right of initiative and referendum” spelled out in the Michigan Constitution, Nessel wrote. 

“Here, the 15% distribution requirement goes beyond a process requirement to impose a substantive limitation on the number of voters within a congressional district whose signatures may be counted.”

Republican lawmakers approved the new petition drive rules late last year in the so-called lame duck session. It came on the heels of a 2018 election that saw liberal groups advance controversial initiatives, including minimum wage and paid sick leave laws the Legislature adopted and then scaled back before they took effect. 

Then-Gov. Rick Snyder signed the legislation into law on one of his last days in office, saying it would "promote geographic diversity" similar to the signature-gathering requirements imposed on gubernatorial candidates filing for election.

Ironically, Nessel’s ruling could help two conservative groups that plan to launch anti-abortion petition drives in an attempt to bypass a promised veto by Gov. Gretchen Whitmer. Nessel has vowed she will never enforce abortion bans if Roe v. Wade is overturned. 

The Michigan Constitution gives citizens the power to initiate legislation, referendums or propose constitutional amendments via petition drive, but it does not include any limitations on where signatures can be gathered. 

The 15% cap on signatures from any given congressional district “imposes an absolute limitation, which denies many registered electors the right to have their signatures counted — a limitation without any basis” in the Constitution, Nessel wrote.

Sponsoring Rep. Jim Lower, R-Greenville, defended the law but said he was not surprised by Nessel’s opinion.  He noted the attorney general had criticized the law at the time Democratic Secretary of State Jocelyn Benson first requested her legal opinion.

“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.”

While Lower predicted the dispute over the law might end up in court, which would not be bound by Nessel's opinion, it does now apply to state government. 

“Several senior staff contributed to the research, analysis and preparation of this opinion,” Nessel said in a statement. “Based on our review, this new law clearly violates the Constitution on several — but not all — fronts.  With these issues resolved, Secretary Benson and her team can now go forward in the work they need to do in managing Michigan’s election process.”

Nessel also invalidated portions of the law that would have required paid circulators to file an affidavit with the secretary of state and check a box on the petitions to indicate their paid status, which supporters said was an attempt to boost transparency. 

But Nessel said those provisions single out paid circulators, as opposed to volunteer circulators, in violation of the speech clause of the state and U.S. constitutions. 

“The affidavit requirement is not substantially related to Michigan’s interest in transparency and the protection against corruption in the initiative and referendum process and, to the extent it targets paid circulators, the statute fails exacting scrutiny and is unconstitutional,” she wrote. 

Lower said he was particularly disappointed by those aspects of Nessel’s opinion.

“This law, from my perspective, has always been about transparency for the voters and getting more input form around the state,” Lower said. “I certainly don’t think it’s unconstitutional, and we had a really strong legal team working with us when we passed it last year, so I think this will end up being litigated in the courts.”

Nessel said other provisions of the 2018 law are constitutional, including language that invalidates all signatures on a petition sheet if a circulator provides false or fraudulent information. 

The unconstitutional provisions can be severed from the remainder of the law, which can stand, Nessel said.