Ballot info law spurs fears for Michigan’s March vote

Jonathan Oosting
Detroit News Lansing Bureau

Benton Harbor school officials say an operating millage renewal set to appear on the March 8 ballot is absolutely “crucial” for the district, but they aren’t sure how — or if — they can inform voters about the merits of the measure.

A new state campaign law approved late last year after a major change on the House floor prohibits public bodies from using taxpayer resources to refer to a local ballot proposal by mail, prerecorded phone call, radio or television advertisement within 60 days of the election.

Benton Harbor is one of more than 100 school districts, local governments or libraries — including some in Metro Detroit — with a ballot measure going before voters on March 8. The new law took effect on Jan. 6, two days before the 60-day communication prohibition began for the current election period.

Gov. Rick Snyder said when he signed the bill into law that he wanted this portion of the law changed, but the Republican-controlled Legislature may not move fast enough to prevent it from affecting local ballot issues in March.

“There’s still some ambiguity on what is and is not allowed,” said Scott Johnson, chief financial officer of Benton Harbor Area Schools, which has converted a planned mailer into a handbill and changed some language in hopes of complying with the new law. “Meanwhile, our election is rapidly approaching.”

Supporters say the law strengthened rules prohibiting the use of public funds for political advocacy. But since local leaders continue to call it a “gag order,” legislators this month introduced three separate bills that would either amend or repeal it.

There was another complication Friday when Moody’s Investor Services called the new law “credit negative,” suggesting it could affect bond ratings and make it more difficult for struggling school districts or local governments to borrow money.

“Michigan schools will likely suffer the brunt of the impact because the vast majority rely on periodic voter approval of local operating levy renewals for property taxes,” Moody’s said.

The law is already having “somewhat of a muzzling effect” in Benton Harbor, said Johnson, who is worried it will prevent the district from publicizing an important vote to fund school operations. The district is operating under a consent decree with the state because of financial struggles.

“The fear is that oftentimes, when people are not aware of a ballot proposal, they’ll vote ‘no’ or will not vote at all,” Johnson told The Detroit News. “There could be apathy on a vote that is critical to the district’s financial survival.”

Supporters say the law is necessary because public bodies too often blurred the line between voter information and advocacy. In signing the bill into law, Snyder asked legislators to revisit the issue and spell out more clearly which type of personal or public communications are allowed.

“We are going to clarify it,” House Speaker Kevin Cotter, R-Mount Pleasant, said last week. “… There are some concerns out there. There are also a lot of untruths out there that are floating around, saying that this is a ‘gag order,’ which clearly it is not.”

More than 70 local government and school officials from Oakland and Macomb counties rallied last Thursday in opposition to the law.

“I want to be the first to defy this law,” Macomb County Executive Mark Hackel said during the event, adding that he is offended the law would order him “to keep my mouth shut for 60 days.”

House Bill 5219, introduced by Rep. Lisa Lyons, R-Alto, would allow officials to share the language of a local ballot question and the date of the election via mass mailer, prerecorded phone call, radio or television ad.

The legislation would also make clear that officials can discuss a ballot proposal during a government meeting that is broadcast using public dollars, provided proponents and opponents have an equal opportunity to make their case.

The House Elections Committee on Wednesday took testimony on Lyons’ bill, also debating in public for the first time the underlying policy of the new law.

The law ensures “strict neutrality” on ballot issues by local government officials who are prohibited from “express advocacy,” said Eric Doster, who testified on his own behalf but also serves as general counsel for the Michigan Republican Party.

Local officials have advocates for ballot measures but avoided state penalties by not explicitly telling residents how to vote, he said.

“This bill is exactly what the governor asked for in his signing statement,” Doster said. “I think it accomplishes the goals of clarifying some of the confusion that came out as a result (of the new law).”

Local officials argue the law is a heavy-handed solution to an unproven problem. In the past three years, there were 24 complaints and 15 confirmed violations of the state’s prohibition on “express advocacy,” said Chris Hackbarth of the Michigan Municipal League, and five were related to local ballot proposals.

“This is a sledgehammer going after an ant,” Hackbarth said.

Local government and school groups oppose Lyons’ fix-it bill and are instead asking legislators to repeal the law because it is already affecting March elections but was not publicly vetted before passage.

Sen. Dale Zorn, an Ida Township Republican who voted for the heavily amended bill in December but later urged a veto by the governor, is sponsoring a new bill that would repeal the law.

“I think right now, in order to get this election cycle out of the way, we need to repeal it,” Zorn said. “Certainly I would look at any other fixes, but let’s repeal it, take our time, look at the problem, and debate it.”

State Rep. Andy Schor, D-East Lansing, agrees and has introduced similar repeal legislation in the House.

“The language that was put in is going to be tremendously problematic in terms of getting information out to voters,” Schor said.

The new law does not apply to state legislators, who are allowed to send out information about statewide ballot proposals, as many did for the road funding tax proposal voters rejected in May.

Legislator mailers are approved by legal counsel for Republicans and Democrats, along with the House Business Office, according to Cotter, who said they are not comparable with local ballot communications.

“The problem at other local levels, whether that be school boards or municipalities, is that you don’t always have that check and balance,” he said. “Here we’re always going to have the check and balance of both parties.”

But Schor, who sent out approved mailers on road funding and personal property tax proposals in 2014 and 2015, said the state is creating a double standard.

“I think we’re saying that we can do it right and the locals can’t,” he said. “If they’re not doing it right, there are and should be penalties in the law, we shouldn’t prevent them from doing it at all.”