High court orders abortion, voting rights proposals on Nov. 8 ballot in Michigan

Beth LeBlanc
The Detroit News

The Michigan Supreme Court on Thursday ordered a proposal onto the Nov. 8 ballot that seeks to enshrine abortion rights in the state constitution, a highly charged issue that political experts said would affect the election. 

The high court on Thursday overruled a deadlocked Board of State Canvassers and ordered the four-member panel to certify the ballot proposal as Prop 3 for the Nov. 8 ballot, discarding arguments that spacing issues in the petition initiative were enough to disqualify the measure. 

The high court also ruled the Board of State Canvassers should do the same for a voting rights proposal seeking, among other things, to allow for nine days of early voting in Michigan. Canvassers had deadlocked over a challenge accusing the ballot committee of failing to list all of the impacted areas of the Michigan Constitution on its petition.

The Michigan Board of State Canvassers is scheduled to meet Friday, when the board members are likely to vote to certify the petitions for the November ballot to comply with the high court order.

The canvassers' duty is limited to assessing the petition's form, content and signatures, the court said. In the case of the abortion petition, Reproductive Freedom for All, all words are present and in order and in 8-point font as required by law, according to the court's order. 

"In this case, the meaning of the words has not changed by the alleged insufficient spacing between them," the order said. 

The breakdown of votes among the justices was not clear from either opinion, but two Republican-nominated justices, David Viviano and Brian Zahra, wrote or signed on to dissents. Democratic-nominated justices hold a 4-3 majority on the court. 

In ruling on the voting rights petition, Promote the Vote, the majority justices said they disagreed that the language of Promote the Vote would affect the parts of the constitution challengers alleged. 

"Instead, we conclude that the proposed amendments would not abrogate any of the constitutional provisions identified by the challenger," the court wrote. "The board thus has a clear legal duty to certify the petition."

The Reproductive Freedom for All question is likely to drive voters to precincts on Nov. 8, perhaps more so than any other issue on the ballot, said David Dulio, a political science professor at Oakland University.

"If all things are equal, which they aren’t, I could absolutely see it driving both sides," Dulio said.

But since Democratic Gov. Gretchen Whitmer and her allies are "just saturating the airwaves and saturating messaging with this issue with no answer" from Republican challenger Tudor Dixon or her allies, "I think it's likely it will be one-sided," he said.

"The pro-choice side is really being activated by these advertisements," he said. 

The Reproductive Freedom for All ballot committee celebrated Thursday's decision. 

"This affirms that more than 730,000 voters read, signed, and understood the petitions and that the frivolous claims from the opposition are simply designed to distract from our effort to keep the abortion rights we had under Roe for nearly 50 years," group spokeswoman Darci McConnell said. 

Citizens to Support MI Women and Children, the group opposing the Reproductive Freedom for All proposal, urged voters to vote no on Nov. 8. 

“It falls to voters now to reject this mistake-ridden, extreme proposal on Election Day, spokeswoman Christen Pollo said. "We are confident that a majority will say No to Proposal 3."

In a Thursday statement, Promote the Vote 2022 thanked the high court for "seeing through the baseless and ridiculous claims" that had blocked its way to the ballot, where the proposal will appear as Prop 2.

“This important ballot initiative will help ensure that every Michigan voter’s voice is heard and that every vote is counted in every election, no matter where you live, what you look like or what political party or candidate you support," said Khalilah Spencer, the group's board president.

Reproductive Freedom for All makes ballot

The Board of State Canvassers last week deadlocked along party lines over certification of the proposal for the November ballot, with two Republicans voting no due to insufficient spacing between words in the petition initiative circulated for signatures. 

State election officials last month recommended certification for the petition, based on the estimate that Reproductive Freedom for All had collected at least 596,379 valid signatures among the record 752,288 signatures submitted in July. The group exceeded the 425,059 signature threshold by more than 150,000 signatures.

The Bureau of Elections argued state election law was "silent" on the issue of spacing, or tracking, between words.

None of the requirements listed for a petition initiative in law is meant to be “an obstacle without a purpose,” Chief Justice Bridget McCormack said in a concurring statement in Thursday's order. Instead, the requirements are meant to promote “transparency and comprehension.”

Challengers of the petition didn’t provide one signer claiming to be confused by the lack of spacing, she said. Yet two canvassers voted against certification because they believed the spacing issue prevent it from being “the full text," she wrote.

“They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad,” McCormack said. “What a sad marker of the times.”

Zahra argued he would have held oral arguments over whether the term “full text” in the law includes requirements for spaces between words. Michigan has an “elaborate” system for petition initiatives that shouldn’t be changed because of “intense interest” in the ballot question, he wrote.

“As a wordsmith and a member of Michigan’s court of last resort, a court that routinely scrutinizes in great detail the words used in statutes and constitutional provisions, I find it an unremarkable proposition that spaces between words matter,” Zahra wrote. “Words separated by spaces cease being words or become new words when the spaces between them are removed.”

Viviano, likewise, also found that words “jammed together” without spaces do not meet the definition in law of “full text,” as required by law, and should “not be placed before voters for their approval.” He noted the high court “would not look kindly” on a brief submitted without adequate word spacing.

"It may have the right words in the right order — as the majority here suggests— but the lack of critical word spaces renders the remaining text much more difficult to read and comprehend, and therefore something less than the ‘full text’ required by the Constitution and statutes,” Viviano wrote.

The initiative, if passed by voters in November, would affirm abortion rights in the constitution and nullify the state's 1931 abortion law, which bans abortion in all cases except when it is performed to save the life of the mother. Enforcement of the law remains blocked as courts battle over whether there is already a right to abortion in the state constitution. 

Promote the Vote plan weighed

Canvassers also deadlocked last week over the Promote the Vote ballot initiative, with Republicans finding that the ballot language didn't list, as required by law, all of the sections of the Constitution that would be altered or abrogated by the proposal.

Opponents of the ballot initiative have argued that, without a full listing of areas of the law the initiative would change, people signing the petition and those headed to the voting booth in the fall are misled about the actual effects of the proposal.

In a concurring statement in the Promote the Vote decision, McCormack reiterated that the canvassers’ role is limited to signature and form determinations, not a question of constitutional effects that should be addressed by a court. 

As he noted in the Reproductive Freedom for All Initiative, Justice Richard Bernstein argued he voted to order certification based on “my consistent belief in the importance of elections in our representative democracy.”

In a dissent joined by Viviano, Zahra argued the Promote the Vote initiative would abrogate current provisions of the Michigan Constitution not listed in the petition, such as the Legislature’s authority to exclude mentally incompetent or incarcerated individuals from those allowed to vote.

Zahra called on the Legislature to change state law so as to allow for more time — roughly six weeks — between the petition certification deadline and the deadline by which ballot language needs to be finalized. The cushion would allow the high court more time to decide legal challenges to certification. 

“This year is not an anomaly,” Zahra said. “In the past decade, the people of Michigan have increasingly exercised their right to direct democracy through proposals to enact legislation and amend our Constitution. With each such proposal, there are unique and complex legal challenges that require in-depth development and thoughtful review by this Court.”

Promote the Vote 2022, which expands on a 2018 ballot initiative focused on voting, would establish nine days of early voting, allow election officials to accept third-party donations, let voters join a permanent absentee ballot list and ensure military or overseas ballots postmarked before Election Day and received within six days after are still counted. 

It also would require audits to be conducted publicly by state and county officials without involvement by party officials. It would cement the role of canvassers in certifying election results as well enshrine in the constitution Michigan’s current voter identification rules, which allow in-person voters to show a photo ID or fill out an affidavit to attest to their identity.