Anti-abortion petition groups face uncertainty after Nessel opinion

Jonathan Oosting
The Detroit News
A circulator seeks signatures on a ballot initiative in Detroit.

Lansing — Two Michigan groups planning separate anti-abortion petition drives say they are uncertain how to proceed but generally pleased by Democratic Attorney General Dana Nessel’s new legal opinion that could ease their signature-gathering process.

The opinion, which is binding on state agencies but likely to be challenged in court, tossed out portions of a new Republican law that sought to limit the number of signatures petition circulators could collect in any given congressional district. Nessel argued that lawmakers created obstacles for voters without constitutional authority.

The attorney general also struck down new petition forms that would have been based on congressional districts, effectively invalidating a petition already submitted by the Michigan Heartbeat Coalition, which is seeking form approval before collecting signatures for an initiative to ban abortions after six weeks of pregnancy.

“We have to approve the font size and petition, but we have no form to give them right now,” said Norm Shinkle, a Republican appointee on the bipartisan Board of State Canvassers. “The form we had was the one the Legislature passed, but Nessel just ruled it unconstitutional.”

Shinkle predicted the petition drive law, approved by the GOP-led Legislature in December, will end up in court. In the meantime, confusion over which form to use in the wake of Nessel’s ruling could dissuade groups from launching petition drives early this summer, he said.

“You might have the wrong form, and you know how much work it is getting signatures,” Shinkle told The Detroit News before a Thursday morning board meeting. “I doubt anybody’s going to be running around collecting signatures in the next couple months here.”

The petition drive rules could also affect plans by  Detroit businessman Dan Gilbert, who is expected to launch an initiative to reform the state's no-fault auto insurance law if Whitmer and GOP leaders are unable to negotiate a legislative compromise. 

Successful petition drives for initiated legislation and ballot proposals typically begin in the early summer to maximize the number of signatures organizers can collect in the 180-day window allowed under state law. Circulators depend on warm weather to collect signatures at summer festivals and outside other public areas. 

While groups may temporarily delay planned launches as they await guidance from Michigan Secretary of State Jocelyn Benson on how to proceed, Nessel’s opinion “seems to be beneficial to us,” said Bill Bolin, a board member for the Michigan Heartbeat Coalition.

The 2018 law would have limited petition drive groups from collecting no more than 15% of their signatures in any of the state’s 14 congressional districts. The result is it would require groups to fan out across the state rather than focus on high-population areas where collection is most efficient.

The Board of Canvassers of Thursday did not take up the petition form the Heartbeat Coalition filed on Thursday, “and that’s actually good for us at this stage,” Bolin said.

“We want as much clarity as possible” before beginning to collect signatures, he said. “We had long deliberations and discussions about whether we should proceed as quickly as we did with the air of uncertainty.”

Separately, Right to Life of Michigan last week formed a committee and plans to launch a petition drive for initiated legislation that would ban dilation and evacuation procedures, the most common method for second-trimester abortions.

The group is waiting on the GOP-led Legislature to send similar legislation to Democratic Gov. Gretchen Whitmer for an expected veto before submitting its petition language, at which point it hopes to know what kind of form to use.

“It might just be one of those things where we create two different petition forms and have them ready to go,” said Right to Life of Michigan legislative director Genevieve Marnon. “It’s not that hard. It’s a .pdf  file.”

Still, Marnon said the timing of Nessel’s opinion is “unfortunate." Her group is hoping for swift and clear guidance on the petition drive rules and likely litigation, because it is “definitely, definitely much more palatable to do it in the summer," she said.

Benson's office is preparing a new guidance plan for petition drive groups and hopes to have it available by next week, said secretary of state spokesman Shawn Starkey. He expects the Board of Canvassers to discuss the new rules at its next meeting, which will likely be scheduled the week of June 10.

Petition drive groups will be directed to use county-based forms, but “the form will be a different one” than used in previous years because of Nessel’s opinion, Starkey said. The opinion also invalidates a checkbox for circulators to indicate whether they are paid or volunteers, which Nessel warned could lead to circulator harassment.  

Right to Life of Michigan is not working with the Heartbeat Coalition and has raised questions about the group’s petition drive because Michigan already has a full abortion ban law on the books that would be reactivated if the U.S. Supreme Court overturns Roe v. Wade.

Both groups are hoping bypass Whitmer, who has vowed to veto any anti-abortion legislation. The Constitution would allow the Republican-led Legislature to make legislation initiated by petition drive law without the governor’s signature.

Whitmer said Wednesday she will still fight the initiatives even if she cannot veto them.

“For government, and a bunch of men in government frankly, to get between a woman and her provider is downright dangerous, especially when most of them can’t even spell endometriosis let alone tell you what it means,” Whitmer said. “They should have no business making policy around women’s healthy in this state.”

Nessel is also a proponent of abortion rights and has made clear she will not enforce the state’s old abortion ban if Roe v. Wade is reversed by a Supreme Court that has grown more conservative with two appointments by President Donald Trump. 

Michigan Republicans had approved the restrictive new petition drive rules after a 2018 election when liberal groups advanced controversial initiatives, including minimum wage and paid sick leave laws the Legislature adopted and then scaled back before they took effect.

Then-Gov. Rick Snyder signed the petition drive legislation into law on one of his last days in office, saying it would "promote geographic diversity" similar to the signature-gathering requirements imposed on gubernatorial candidates filing for election.

Nessel deemed multiple portions of the law unconstitutional, drawing criticism from the Michigan Republican Party, which argued she “decided to throw out a law she doesn’t support based on purely partisan grounds.”

“The job of the Michigan attorney general is to enforce Michigan’s laws, not create them,” GOP Chairwoman Laura Cox said in a statement.

But Nessel’s ruling was hailed by both the American Civil Liberties Union of Michigan and Patrick Anderson, a conservative who worked on the Michigan’s 1992 term limits ballot campaign and helped write a 2006 initiative to repeal the Single Business Tax.

“When the ACLU and I agree on these things, you can be quite certain there’s a reason,” said Anderson, who testified against the legislation last year before Nessel took office. “The Constitution reserves the right to petition to the citizens, and the Legislature foolishly let itself get persuaded otherwise.”

Right to Life of Michigan was not surprised by Nessel’s opinion, Marnon said. The group has run successful petition drives in the past and expects it will be able to do so again. But it is anxiously awaiting new state rules and the resolution of likely litigation so it can move ahead.

“It shouldn’t be a problem for us,” Marnon said. “It’s just a matter of how fast will they get this turned around?”