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Federal judge halts ‘gag order’ ballot info law

Jonathan Oosting
Detroit News Lansing Bureau

Lansing – A federal judge on Friday ordered the state to stop enforcing a controversial section of a new law that prohibits local government officials from distributing information about ballot proposals.

U.S. District Judge John Corbett O’Meara granted an injunction at the request of local officials, who sued the state late last month, alleging part of the law violates their free speech and due process rights.

In his order, O’Meara wrote that the plaintiffs demonstrated “a strong likelihood of success on the merits of their claim that (the law) is unconstitutionally vague and thus void.”

“The infringement of constitutional rights inherently causes irreparable injury,” he wrote. “The balance of harms favors plaintiffs, as neither the state nor third parties would be harmed if the state is enjoined from enforcing” the law.

The law, approved late last year in the Republican-led Legislature after major revisions on the House floor, prohibits local units of government from using taxpayer dollars to share information about local proposals by mail, telephone and radio or television ad within 60 days of an election.

Critics have called the law a “gag order” because existing state law already prohibited the use of taxpayer money to advocate for the outcome of an election. Supporters have denied the charge and argued that the law was a response to local officials who had blurred lines while using public resources.

Someone who knowingly violates the law is guilty of a misdemeanor punishable by a maximum fine of $1,000 or imprisonment for up to one year, or both, if the violator is an individual, according to an analysis of the bill.

If the violator is not an individual, the penalty is a maximum fine of $20,000 or a fine equal to the amount of the improper contribution or expenditure, whichever is greater.

The injunction is against Michigan Secretary of State Ruth Johnson and the Michigan Secretary Of State’s Office, which enforces election laws. Gisgie Gendereau, spokeswoman for the Secretary of State’s Office, said the office is reviewing the order and will follow the court’s direction.

House Republican spokesman Gideon D’Assandro noted that O’Meara did not rule on the free speech allegation and legislators are already working on a bill to clarify the law, as requested by Gov. Rick Snyder last month in a signing statement.

“Because we’re working on that clarifying bill right now, we’re confident we’ll address (O’Meara’s) concerns in short order,” D’Assandro said about the order.

O’Meara said the broad language in the act “appears inconsistent” with the stated purpose of prohibiting “electioneering” with taxpayer funds. He criticized “vague” wording in the statute and said it provides “no check against arbitrary or discriminatory enforcement.”

“This matter is best resolved through the legislative process, with due deliberation and debate,” O’Meara wrote. “Given the fast approaching March 8, 2016, elections, however, time is of the essence and the court must act.”

More than 100 local governments and school boards have proposals on the March 8 ballot.

The House Elections Committee this week advanced a bill that would clarify the law by allowing local officials to distribute “factual and strictly neutral” information “concerning the direct impact” of a ballot proposal.

State Rep. Lisa Lyons, R-Alto, said her bill strikes a fair balance of taking “concerns to heart while protecting our taxpayers,” but local government groups say the new proposal remains vague. They continue to call for full repeal.

Dearborn Mayor Jack O’Reilly, president of the Michigan Municipal League, called Friday’s injunction “confirmation of what we’ve been saying all along, which is that this law was overreaching and attempted to solve a problem that didn’t exist.”

joosting@detroitnews.com

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Staff Writer Jennifer Chambers contributed.