Divided Michigan Supreme Court doesn't weigh in on petition requirements

Craig Mauger
The Detroit News

Lansing — The Michigan Supreme Court avoided weighing in Tuesday on the constitutionality of hurdles imposed in 2018 by the GOP-controlled Legislature for petition efforts to initiate ballot proposals.

In a 4-3 decision, the state's high court ruled that one group's suit disputing the requirements was moot because the campaign had ended its petition effort and that the House and Senate lacked standing to challenge an opinion by Democratic Attorney General Dana Nessel that deemed their policy unconstitutional. 

The law in question says a statewide petition campaign may not get more than 15% of its signatures from one of the 14 congressional districts. Petitions must include check boxes indicating whether a gatherer is paid or not.

Boxes filled with a reported 539,384 petition signatures are delivered by Unlock Michigan to the Michigan Department of State Bureau of Elections in Lansing Friday, Oct. 2, 2020. The group is seeking to revoke Governor Gretchen Whitmer's ability to govern by emergency decree.

Three Republican-nominated justices dissented in elements of Tuesday's decision, arguing that it had left open the question of whether campaigns should follow the 2018 law or Nessel's opinion that the law was unconstitutional. Justice Stephen Markman said the ruling meant the issue was "confused and uncertain."

"Are those who pursue such measures obligated to abide by the statutory direction of the Legislature or by the direction of the Attorney General in her opinion as construed by the Secretary of State?" Markman wrote in one of three dissenting opinions. "Take your pick; toss a coin; chance a guess. The majority opinion offers not the slightest legal guidance."

Justice David Viviano, a Republican nominee, wrote the majority opinion, which was joined by the three Democratic-nominated justices. The judiciary can only weigh in on legal issues when there are "genuine controversies between adverse parties," he said.

"The dissents express great concern that this resolution leaves important legal questions concerning the constitutionality of the statute unanswered," Viviano said. "We agree that, when it is appropriate, this court has an obligation to say what the law is. But we cannot let this desire for stability overcome the limits of our role."

The law in question gained the approval of Republican lawmakers during the 2018 lame duck session. It came in the weeks after an election that saw groups advance ballot proposals to increase the minimum wage, legalize marijuana and allow for no-reason absentee voting.

In May 2019, Nessel issued an opinion, finding the law inappropriately limited voter participation in the proposal process. The GOP-controlled Legislature sued Secretary of State Jocelyn Benson, requesting a declaratory judgment that the amendments were constitutional.

Two organizations, the League of Women Voters of Michigan and Michiganders for Fair and Transparent Elections, challenged the law itself. Viviano labeled the legal history "a procedural mess from the beginning."

Michiganders for Fair and Transparent Elections, the lead plaintiff, lacked standing to bring its case because it had suspended its petition-gathering efforts, the four-justice majority found. The majority vacated the lower courts' decisions, describing them as "effectively un-reviewable." As for the Legislature, it lacked standing to challenge Nessel's opinion, the majority found, noting that a private party could still challenge it.

"It would require a very generous view of legislative standing to allow the Legislature to initiate a declaratory-judgment action whenever the Executive declines to enforce an act it believes unconstitutional, relying on a formal opinion by the Attorney General," Viviano wrote.

Viviano

Justice Brian Zahra, one of the four Republican-nominated justices, was among the dissenters. He contended that it would be difficult for a plaintiff to obtain timely relief in a ballot initiative case. It took nearly six months for the current case to reach the high court, Zahra said.

The legal challenges involving the law are issues of great public significance and are likely to recur, "yet evade meaningful judicial review," Zahra wrote.

cmauger@detroitnews.com