State asks judge to toss marijuana ballot access case

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Michigan officials are asking the Court of Claims to dismiss a lawsuit by a group seeking to place a recreational marijuana legalization proposal on the November ballot, arguing there isn’t enough time to make ballot access a realistic possibility.

The suit also fails to identify constitutional claims, conflicts with governmental immunity protections and contradicts a previous state Supreme Court decision, according to a motion to dismiss filed Friday in the Michigan Court of Claims by Attorney General Bill Schuette’s office.

MI Legalize sued Secretary of State Ruth Johnson, Bureau of Elections Director Chris Thomas and Board of State Canvassers on June 16, challenging a state law that had generally limited petitioners to a 180-day window when collecting signatures for initiated legislation.

Attorney and executive director Jeff Hank called the state’s motion to dismiss “unpersuasive” and “unconvincing.”

The activist-led group submitted an estimated 354,000 signatures to the state on June 1, topping the 252,523 needed to qualify for the ballot, but many were collected outside of 180 days.

MI Legalize claims a 1986 state policy for proving the validity of older signatures — obtaining affidavits of voter registration status from local clerks around Michigan — was outdated and impossible to comply with. Hank had proposed a new policy that would have allowed petitioners to use the state’s Qualified Voter File Database.

But the pot group’s requested injunction is moot because “it is impossible” for the Bureau of Elections to complete a full canvass of the petitions, send the proposal to the Legislature for a required 40-day review period and still allow enough time ensure it appears on absentee ballots mailed out in September, according to the Schuette’s office.

“Even if an order were entered today, there is no practical way to accomplish a competed canvass of MI Legalize’s petition in order to meet the July 29, 2016, deadline,” said the motion to dismiss the suit. “That does not include any challenge to signatures brought by opponents to the petition… or any legal challenges that might follow.”

Schuette’s office said it can take the bureau around 60 days to review signatures and complete a full canvass, which Secretary of State spokesman Fred Woodhams called a “decent estimate.”

Hank called the state’s timeline claims “completely untrue,” saying MI Legalize “thinks there’s definitely enough time” for the bureau to complete a canvass by July 29, “especially if the court acts right away.”

The state motion “completely avoids discussion of the 1986 policy and how we couldn’t comply with it,” Hank said. “They just kind of glossed over that fact.”

The state also argues MI Legalize is seeking damages from officials who have governmental immunity and disputed the group’s claim that state petition circulation rules amount to an unconstitutional limitation on political speech.

“While the First Amendment protects petition circulation, there are no cases recognizing a First Amendment right to have petitions canvassed a certain way or to have particular signatures counted,” according to the filing.

Schuette’s office highlighted a 1986 decision by the Michigan Supreme Court, which upheld a 180-day signature window for petitions to amend the state Constitution. The ruling should also apply to initiative petitions, the filing said.

Gov. Rick Snyder in June signed a new law that tightened the window by eliminating the option to rehabilitate older signatures. MI Legalize does not have standing to sue over the new law because it did not apply to their petition drive, the state argued.

The MI Legalize case has been assigned to Court of Appeals Judge Stephen Borrello, who also sits on the Court of Claims. An internal review is expected Tuesday.