Michigan civil rights campaign plans high-stakes fight over petitions
Lansing — The campaign to extend Michigan's civil rights law to ban discrimination based on sexual orientation will contest state officials' finding that it failed to collect enough petition signatures, setting up a potentially high-stakes legal battle.
The fight could determine whether voters have the chance to approve the long-debated protections against bias in 2022 and could provide judges an opportunity to settle disputes over the petition-gathering process, including whether electronic signatures should be allowed.
"We are prepared to, obviously, litigate. The posture is going to depend on what the board does or doesn't do," said Steve Liedel, lead legal counsel for the Fair and Equal Michigan campaign, of the Board of State Canvassers. "We are confident in our legal position."
The Board of State Canvassers could reach a decision next week on whether its members believe Fair and Equal Michigan hit the 340,047-signature threshold. A coalition of business executives, political activists and nonprofit leaders launched the initiative in January 2020. The idea was to put a proposal to ban discrimination based on sexual orientation and gender identity before the GOP-controlled Legislature.
Lawmakers have long debated the reform in Michigan with Republicans previously calling for protections for religious beliefs to be included in any such measure. If the Legislature refused to sign off on the Fair and Equal Michigan initiative, it would go before voters in 2022.
The campaign has reported about $3.8 million in contributions and netted support from some of Michigan's largest companies, including Dow Chemical, Rock Holdings and TCF Bank.
But after the group turned in 468,000 petition signatures, the Michigan Bureau of Elections, which is part of Democratic Secretary of State Jocelyn Benson's office, found it to be short on valid signatures on July 8 — a decision that would derail the campaign.
Examining a sample of 502 signatures, staff determined only 337 were valid, leaving Fair and Equal Michigan 61 short of the threshold needed to be certified by the Board of State Canvassers and 33 shy of the benchmark for a second sample to be pulled.
Meanwhile, opponents have contended that at least 39 additional signatures deemed "valid" were duplicated elsewhere in the filing. And during a canvassers meeting on July 13, Jonathan Brater, Michigan's elections director, described Fair and Equal Michigan as "well short" of the needed signatures.
"The staff is confident that its recommendation will ultimately be the outcome,” Brater told the board.
Fair and Equal Michigan organizers initially focused on calling for a second sample to be examined, but now, they are arguing that the campaign hit the threshold to be certified — in direct contradiction to the Bureau of Elections analysis.
In a letter sent to the Board of State Canvassers on Friday, Liedel said 97 signatures of the 165 rejected in the sample should be rehabilitated and counted as valid, putting the campaign at 434 valid signatures, well above the 398 threshold.
Chris Thomas, Michigan's longtime former elections director, said it's not unusual for campaigns to be able to rehabilitate signatures deemed invalid. But the large number of signatures Fair and Equal Michigan needs to justify would be unusual. Thomas said he would be surprised if the campaign is successful.
Fair and Equal Michigan's argument hinges on signatures that state officials deemed invalid because of the signer's registration status. There were 97 of those in the 502 sample. Fair and Equal believes at least 53 of them were properly registered and should have counted.
The campaign also sent the state a report by an Arizona-based firm Signafide that found 80 of the 97 were "potentially rehabilitatable" based on analysis of information on the petition sheets and Michigan's registered voter files. Without standardized practices, it is hard to say how state officials and Fair and Equal Michigan reached such different conclusions, said Trevor Thomas, who is on Fair and Equal Michigan's board.
"We are assuming best intentions," Thomas said, citing potential pressure from the COVID-19 pandemic and the 2020 election.
In one example, Fair and Equal says a student at the University of Michigan signed the petition, listing an address in Ann Arbor, where the university is located. The student is registered to vote in Canton Township and the signature was determined to be invalid while it should have been accepted, Liedel said.
The campaign believes 44 other signatures in the sample should be deemed valid based on listing proper jurisdictions and including proper signatures on the petitions when the Bureau of Elections determined otherwise.
In another case, staff officials ruled a signature invalid because it didn't have a proper date, according to Fair and Equal Michigan. However, there appears to be a date with the signature, although it's hard to read, and the date appears to match the date listed by others who signed the same petition sheet: Sept. 19, 2020.
On top of those matters, Fair and Equal Michigan submitted more than 18,000 electronic signatures that it argues should count toward the overall tally. That matter could be settled in the courts.
"We expect the appellate courts to take an interest," Liedel said. "Because there are some novel questions of law."
The Board of State Canvassers met on July 13, when members delayed a final decision on Fair and Equal Michigan's petitions. The board is next scheduled to meet on Monday. Last week, Tony Daunt, a Republican member of the board, said he didn't expect the determination on Fair and Equal Michigan lacking signatures would change.