State: Ballot initiative showed 'questionable diligence' in gathering signatures

The state of Michigan says a lawsuit over signature requirements for a ballot initiative and the deadline to collect them was filed too late.

More:Mich. ballot initiative hampered by pandemic, lockdown seeks day in court

Wednesday was not only the deadline for signed petitions for ballot initiatives — 347,047 required by 5 p.m. — it was the state's due date for a response to a lawsuit it still hadn't received.

At stake is the Michigan Prisoner Rehabilitation Credit Act, which is seeking a spot on the November ballot. The act would restore "good time" credits for good behavior to the state prison system, which were eliminated by a vote of the people in 1998.

Truth In Sentencing, the law in Michigan, means that people must serve their minimum sentences before being released

'Some issue involving the mail'

"The (state) received an email from the court on May 21, 2020, alerting them to the existence of the motion and requesting they join a scheduling conference by telephone that afternoon," its response reads. "During that telephone conference, the court indicated that—due to some issue involving the mail—the complaint and motion had just arrived to the court that day."

Arguing that "equity aids the vigilant," the state claims the initiative "delayed unreasonably in asserting their rights" and that the state is "prejudiced" by that delay, with its response made due the date of the deadline. The ultimate resolution cannot come until the deadline has passed, denying relief to others in the same circumstance, the state says. 

"Even the May 4 filing date was already an unreasonable delay for a complaint seeking to modify a deadline less than 30 days away," the state argues. "Simply stated, the plaintiffs — of their own choosing — waited until less than a month before the deadline to file their claims. That delay is simply unreasonable...The ability of (the state) to meaningfully respond to the complaint — or even to effectively comply with any potential injunction — has been effectively destroyed by the last-minute filing of this action." 

The state argues that an injunction granted to the plaintiffs would harm others now that the deadline has passed.

The state then argues that the lockdown, ordered by Gov. Gretchen Whitmer, poses an "undeniable burden," but one that is "not severe under the circumstances." 

'Questionable diligence'

Ballot initiatives have a 180-day window to gather signatures. That's about six months, which for the May 27 deadline would've meant starting on Nov. 29. But, the state claims, the initiative filed with the Secretary of State's Office on Jan. 16, about a month and a half into the 180 day window. 

"As a result, plaintiffs lost a significant portion of their 180-day signature gathering period before gathering their first signature," the state argues.

The state also argues that the lockdown order was no legal impediment on signature-gathering, as First Amendment activities were always allowed to continue. The state also notes the group used the postal service to send and receive petitions.

The May 27 deadline is not arbitrary, the state argues, but rather "a necessary cog in Michigan’s election machinery that keeps the process running in an orderly manner...by ensuring that the Secretary of State and her staff have sufficient time to canvass petitions, provide a challenge period, and meet the ballot certification deadline, which triggers final preparations for ballot printing by the counties."

The state asks that even if the court does grant relief, that it "refrain from altering the signature requirements" and that the defendants — Whitmer, Secretary of State Jocelyn Benson, and director of elections Jonathan Brater, who were all sued in their official capacities — be given "an opportunity to comment on what a workable deadline would be under the circumstances."

"Changing the number of signatures would require this court to order a new number to replace the one provided in the state constitution," the state claims.

"It may be tempting," the state argues, "to think that this case presents an opportunity to fix just one problem brought about by the crisis. But there are risks to rewriting statutes and constitutions on the fly while the election is already underway — especially when there are precious few legal principles to guide the outcome."

The group pushing for the ballot initiative argues it should be granted similar relief to Eric Esshaki, a Republican U.S. House candidate who successfully sued in federal court. In the end, the state halved the 1,000-signature requirement and extended the deadline. 

But the state argues the situations are different because the initiative still had more than a month between the lockdown orders and the deadline, unlike Esshaki.

In an accompanying declaration, Brater, the election director, lays out the roughly 60-day process for qualifying and challenging signatures on the petition. 

There is another 60-day window that matters: ballots for the Nov. 3 election must be certified by every county clerk in Michigan no later than Sept. 4, 60 days before Election Day. 

Supporters of the Michigan Prisoner Rehabilitation Credit Act must file their response by Monday. The case is being heard by Judge Matthew Leitman, a federal judge working out of the Flint courthouse.

jdickson@detroitnews.com

Twitter: @downi75