Michigan Supreme Court: Send Unlock Michigan proposal to Legislature

Craig Mauger
The Detroit News

Lansing — The Michigan Supreme Court ruled Friday that the Board of State of Canvassers must certify Unlock Michigan's petition signatures and advance the proposal to the state Legislature.

The court's ruling will likely allow the GOP-controlled House and Senate in the coming days to repeal the 1945 law that bolstered Democratic Gov. Gretchen Whitmer's initial response to the COVID-19 pandemic.

In what appeared to be a unanimous ruling, the state's highest court said the investigatory powers of the Board of State Canvassers are limited and the bipartisan panel "has a clear legal duty to certify the petition."

Unlock Michigan co-chairs, from left, Garrett Soldano, Ron Armstrong and Meshawn Maddock speak to supporters in Lansing in October 2020.

Fred Wszolek, spokesman for Unlock Michigan, touted the decision Friday.

"We urge the Michigan House and Senate to act promptly to finally strike this awful law from the books forever," he said. "Gov. Whitmer used this law recklessly to crush businesses, families and lives. No governor should be able to do so ever again."

Norm Shinkle, the Republican chairman of the Board of State Canvasser, said he hopes the panel can meet next week to certify the signatures. The board's secretary is contacting members to determine what's possible with members' schedules, Shinkle said.

Senate Majority Leader Mike Shirkey, R-Clarklake, said he's looking forward to putting "this important step to statutorily restore the balance of democracy" up for a vote as quickly as possible.

Keep Michigan Safe, the opposition group that opposed the Unlock Michigan campaign, filed a motion for reconsideration Friday with the state Supreme Court.

“The decision by the Michigan Supreme Court doesn’t just allow Unlock Michigan’s illegally gathered signatures to count but will allow every future ballot proposal campaign to collect signatures illegally," said Chris Trebilcock, an attorney for Keep Michigan Safe.

"We urge the court to reconsider its bare-bones decision and give the serious and far-reaching legal issues we raised careful consideration," Trebilcock continued. "I am not sure the dire consequences of this decision are appreciated."

On April 22, the Board of State Canvassers deadlocked on whether to approve the group's petition signatures. The two Democratic members wanted an investigation and new rules on petition collection amid claims of wrongdoing by individuals who gathered signatures for Unlock Michigan.

Democratic Attorney General Dana Nessel had announced she wouldn't bring any charges after investigating allegations of wrongdoing involving Unlock Michigan. But Democrat Julie Matuzak, one of the four canvassers, called for a probe by the board itself into the signatures.

"We are the gatekeepers of election integrity," Matuzak said. "And election integrity includes petitions. I think we let down voters if we don't exercise the power that we have."

Keep Michigan Safe alleged that the petition gatherers had been coached "to blatantly lie to convince people to sign petitions" and had used other improper tactics.

However, Michigan Bureau of Elections staff estimated about 460,358 signatures of the total 538,345 submitted by Unlock Michigan were valid. The group needed 340,047 signatures to obtain certification.

“This was very, very unusual that we didn’t already certify," Shinkle said.

Unlock Michigan's proposal would repeal the 1945 Emergency Powers of the Governor Act, which allowed a governor to declare a state of emergency and keep it in place without input from the Legislature. The governor could take unilateral actions, like suspending state laws, under the declaration.

The Michigan Supreme Court ruled the law unconstitutional on Oct. 2, the same day Unlock Michigan submitted its petition signatures to the Bureau of Elections. Despite the court decision, supporters of Unlock Michigan, which has ties to state Senate Republicans, want the the law formally repealed in case a court later tries to revive the law.

The state Supreme Court now has a 4-3 majority of Democratic-nominated justices after the high court had been controlled by Republican-nominated justices for a decade. Experts have said liberal groups might be prompted to file lawsuits in hopes they reach the high court's new majority, which might overturn precedents of its conservative predecessors. 

Secretary of State Jocelyn Benson decided not to have the Michigan Bureau of Elections review the signatures until well after the Nov. 3, 2020 election.

"The Bureau of Elections must direct all of its staff and resources to ensuring successful execution of what may be the most highly anticipated election in a generation, which is taking place in the midst of a global pandemic that is requiring the bureau to provide unprecedented levels of support to every one of the 1,600 local election clerks across the state," Benson spokeswoman Tracy Wimmer said in mid-October.

On March 26, the Bureau of Elections released a 500-signature sample that it used to later determine that enough valid signatures had been submitted. The Board of State Canvassers then deadlocked on approving the signatures at its April 22 meeting, prompting the litigation that led to the state Supreme Court's ruling.

Like Shirkey, state House Speaker Jason Wentworth, R-Farwell, said his chamber will "act quickly to repeal the old 1945 law."

"Today’s ruling finally gives us the opportunity to do the right thing and take this law off the books so no one can ever abuse it again," Wentworth said. "The House will act as soon we receive the petitions to get this done and uphold the will of the people we serve."

Republican Garrett Soldano of Mattawan, a candidate for governor who previously co-chaired the Unlock Michigan campaign, also touted the ruling and called on the Legislature "to repeal the law once and for all."

But Lavora Barnes, chairwoman for the Michigan Democratic Party, said she was disappointed by the decision from the Supreme Court, which has a majority of Democratic-nominated justices.

"Sadly, the Supreme Court decision has opened the door for the illegal conduct to continue on future ballot drives like the imminent Republican voter suppression effort which is why this decision is so disappointing," Barnes said.