Michigan's petition signature limits by congressional district ruled unconstitutional

Beth LeBlanc
The Detroit News

A Michigan Court of Appeals panel ruled Friday that the Legislature's effort to limit how many signatures petition groups can gather per congressional district is unconstitutional because it "will disenfranchise some electors and seriously burden the work of circulators."

The three-judge panel also struck down 2-1 a requirement in the 2018 law that required paid circulars to notify the Secretary of State's office of their status before collecting signatures. The ruling kept intact a requirement that petition forms include a checkbox that paid circulators would have to mark to notify signers that they are not volunteer. 

"Constitutional provisions that are self-executing must not be burdened or curtailed by supplementary legislation," Judges Amy Krause and Kirsten Kelly wrote in the majority opinion. "Further, this Court liberally construes constitutional initiative and referendum provisions, through which the people reserve to themselves a direct legislative voice, to achieve their purposes."

Regarding the checkmark requirement, however, the court concluded that it "imposes little to no burden on political speech and substantially relates to an important governmental interest."

Court of Appeals Judge Thomas Cameron concurred with Krause and Kelly, but wrote a separate opinion to underscore the panel's decision that the checkbox requirement is constitutional because it "is designed to ensure transparency and to provide relevant, valuable information to the electors."

Krause is an appointee of Democratic former Gov. Jennifer Granholm, Cameron an appointee of Republican former Gov. Rick Snyder and Kelly was first elected to the court in 2000. 

Many requirements of the 2018 law haven't taken effect over the past three years amid a flurry of attorney general opinions and court decisions. Friday's Court of Appeals opinion marks the fourth time a court has ruled on the issue in what's been called a "procedural mess." 

The 2018 law signed by Snyder prohibits petition gatherers from collecting more than 15% of their required signatures from one specific congressional district. It also required signature forms be labeled by congressional district, not county, and required paid signature gatherers to notify the Secretary of State of their non-volunteer status. 

The law required a checkbox on signature forms that circulators would have to check if they were paid. The petition form would have to contain language noting that paid circulators who violated the rules could not have their gathered signatures counted and could be guilty of a misdemeanor. 

Several groups that have relied on the petition process in the past — both liberal and conservative — opposed the legislation. The lawsuit that prompted Friday's ruling was filed by the League of Women Voters, Progress Michigan, Coalition to Close Lansing Loopholes and Michiganders for Fair and Transparent Elections.

When Democratic Secretary of State Jocelyn Benson took office in January 2019, she asked Attorney General Dana Nessel to opine on the constitutionality of the petition gathering changes. 

Nessel found that the 15% requirement violated the Michigan Constitution because it does not restrict signatures by geographic region. She also found that the checkbox on the form could expose paid petition gatherers to harassment and that the mandate requiring paid circulators to disclose their status with the Secretary of State was unrelated to government interests and unconstitutional. 

Nessel said those areas could be severed from the rest of the act. 

Around the same time Nessel issued her opinion, interest groups filed suit in the Court of Claims alleging the law was unconstitutional. A month later, in June 2019, the state House and Senate sought an order from the Court of Claims stating the chambers were "the exclusive lawmaking body of Michigan" and, as such, their enacted law should be enforced. 

The Court of Claims, which instead allowed the Legislature to file amici briefs in the already existing case, found the 15% geographic cap and checkbox requirement were unconstitutional but ruled the affidavit requirements could stay.

The Court of Appeals, in an expedited decision last year, affirmed the Court of Claims ruling but called the affidavit requirement unconstitutional. 

The parties appealed to the Michigan Supreme Court but because one of the filing groups had ended its petition drive because of the pandemic, the high court said the case was moot, vacated the Court of Claims decision and noted the whole episode had "been a procedural mess from the beginning."

The groups refiled after the decision, asking the courts again to weigh in on the issue. The Court of Claims ruled largely along the same lines as it had before and the ruling was promptly appealed, landing it again in the lap of the Court of Appeals.