Unlock Michigan signatures challenged as group asks canvasser be disqualified

Beth LeBlanc
The Detroit News

A group fighting the advancement of an initiative petition that would repeal a law underpinning Gov. Gretchen Whitmer's emergency powers laid out its challenge Friday to the petition signatures, the way they were gathered as well as the rules and officials who would decide their fate. 

In the nearly 40-page complaint, Keep Michigan Safe asked the Board of State Canvassers to delay consideration of the Unlock Michigan signatures until one of the canvassers recused himself and the rules governing the consideration of signatures had gone through a proper rule-making process. 

The group also challenged more than 180 signatures as invalid, critiqued the summary and other elements of the petition, and called for an independent investigation of the circulators who helped collect signatures. 

An Unlock Michigan volunteer delivers boxes of petition signatures for the proposed ballot initiative to the Michigan Bureau of Elections in October 2020. Its petition signatures are being challenged.

If the board fails to go through a proper rule-making process, Keep Michigan Safe said it plans to take the issue to court, the complaint said.

“Neither the Secretary of State nor the board has ever properly adopted the board’s practices for reviewing ballot questions petitions and their signatures under the APA, from the initial 'face check' to sampling to signature matching,” the complaint read. 

Unlock Michigan dismissed the complaint from the opposition group, arguing that the plan was more of an effort to "Keep Michigan's Courts Busy" with "frivolous" claims. 

It's time for the Board of State Canvassers "to do its job," Unlock Michigan's Fred Wszolek said.  

"Our tens of thousands of Unlock Michigan volunteers can be very proud of the record they’ve set, collecting more than 500,000 signatures in just 80 days, with an astonishingly high record of quality," Wszolek said in a statement.

The petition would repeal the 1945 Emergency Powers of the Governor Act, which Whitmer used to issue dozens of pandemic executive orders before the law was ruled unconstitutional by the Michigan Supreme Court on Oct. 2.

Unlock Michigan turned in more than 500,000 signatures the same day and, on March 26, the Bureau of Elections released a 500-signature sample that it will use to determine the validity of the signatures submitted. 

Keep Michigan Safe's Friday complaint, based in part on that sample, is separate from, but can be used to inform, the election bureau's eventual recommendation to the Board of State Canvassers for or against the measure's certification.

If the board certifies the petition, it would go to the GOP-led Legislature, which could approve the measure or send it on to the 2022 ballot. Unlock Michigan has said from the start it intends to move the initiative through the Legislature rather than wait for next year's election. 

Among its challenges, Keep Michigan Safe outlined two other challenges that must be resolved before canvassers could even consider the content of the petitions and its signatures.

The group called for the voluntary or forced disqualification of Tony Daunt, whom Whitmer appointed as a Republican canvasser and who is executive director of the conservative Michigan Freedom Fund. 

The Michigan Freedom Fund posted support of the Unlock Michigan initiative at least five times on its Facebook page from July 2020 onward. 

A petition gatherer for Unlock Michigan sets up a table outside the Michigan Capitol on Aug. 14, 2020.

"These posts render member Daunt unable to serve and fulfill his oath of office based on his own personal sympathies and the conflict of interest with his role with the Michigan Freedom Fund," the complaint said. 

Daunt said Friday that he had not yet read the Keep Michigan Safe filing but said he planned to follow the rule of law while on the board.

"As I stated when I accepted this position, I intend to follow and uphold the rule of law regardless of the content of a proposal or the outcome of an election and I will execute my duties as a member of the Board of State Canvassers with those principles in place," he said.

Keep Michigan Safe also called for an independent investigation of Unlock Michigan's effort that included subpoenas of Unlock Michigan, Wszolek and circulators that included a state senator. 

In late September, Attorney General Dana Nessel announced an investigation into the petition initiative after allegations that Unlock Michigan hired a trainer who advised circulators and volunteers on techniques that may have led to criminal activity. 

Wszolek has said Unlock Michigan wouldn't use signatures turned in by the company that employed the trainer. 

Nessel's office said Friday it expects the results of its investigation will be released within the next few weeks. But Keep Michigan Safe argued in its Friday complaint that even a criminal investigation wasn't enough because only the Board of State Canvassers had the authority to disqualify signatures based on bad actions by circulators.

Aside from Nessel's investigation, the signature gathering effort saw issues with circulators that should be investigated further, including ones related to GOP state Sen. Aric Nesbitt, the complaint said. 

The complaint claims Nesbitt's petition lists collection data that indicate signatures were gathered Aug. 1 in Allegan County. But Nesbitt, they argue, was baling straw in Berrien County that day and posted about it on Twitter. 

Nesbitt told The Detroit News on Friday he helped collect signatures in the morning in Allegan County and was baling straw in the late afternoon at a family farm in Van Buren County, not Berrien County. 

"Apparently, these left-wing lawyers are unaware people can do multiple activities in one day, and they can't even get the county in which our farm is located right," he said.

In addition, the complaint argues that more than 180 of the roughly 500 signatures should be disqualified, bringing the approved number of signatures to a level that would require the pulling of a second sample of signatures. 

Among other defects, some signatures were duplicates, others were incomplete and some were gathered by out-of-state circulators who didn't properly list the county in which they're registered to vote, the complaint alleged.

The complaint lists multiple alleged defects in the petition itself, including a "skeletal, legalese-filled" summary that fails to tell signers in plain language "about the content or effect of the law being replaced." The complaint also alleges deficiencies with elements of the title and language of the petition.

"The Unlock Michigan petition summary contains omissions and defects that are likely to mislead electors asked to sign the petition," it said.