Lupher: Initiative petition process cries for reform

Eric Lupher

We are about one year away from the 2016 general election and efforts are in full swing to qualify initiated statutes and constitutional amendments for that statewide ballot. Already we’re seeing evidence with those efforts of the dysfunction that we’ve come to associate with the law/amendment drafting, petition circulation process, and voter information that comes with ballot questions.

This month, petitions for an effort to repeal Michigan’s prevailing wage law were rejected after those opposed to the effort identified problems with about 40 percent of the signatures — problems later confirmed in a review by the Department of State’s Elections Bureau. During the Board of State Canvassers meeting, allegations were made that paid circulators may have misinformed people in order to get them to sign the petitions.

The Citizens Research Council of Michigan looked at Michigan’s initiative and referendum processes after similar dysfunction became evident in the 2012 election. CRC’s research identified opportunities for reform based on practices in other states that authorize initiated statutes and constitutional amendments.

A key finding was that Michigan is an exception among the states because it allows proponents to put petitions in the field before addressing potentially controversial issues (Illinois is the only other state without a front-loaded process, but the initiative process can only be used to amend a particular article of Illinois’ constitution). The other states that authorize initiatives require proponents to register with the state before starting their signature gathering efforts. Amending Michigan law to require this would provide opportunities to head off many of the issues witnessed in recent election cycles.

In the effort to repeal Michigan’s emergency manager law (Public Act 4 of 2012), allegations were made that the petition form was not in conformity with state law. By requiring proponents to register at the outset, petition forms can be validated (as the Michigan Board of State Canvassers has begun doing for those that voluntarily bring their petitions before the board) before circulation begins. In some states, the state election agency actually prepares the petitions to be used, rather than leave this to those seeking a change in law.

As with this prevailing wage repeal effort, allegations of paid petition circulators telling potential petition signers whatever was necessary to get signatures also arose with the recent effort to ban the use of affirmative action practices. Other states prohibit paying circulators on a per signature basis; require circulators to undergo training and abide by certain standards; and take measures to identify paid petition circulators differently than volunteer circulators.

Michigan’s process could also be improved by altering the timing of when the proposal description is drafted. Whereas Michigan drafts a 100-word description after questions are certified for the ballot, other states draft this neutral description before petitions are circulated and include that description on the petitions to inform potential signers that are unsure about the content and effects of the proposed law changes.

Additionally, other states take efforts to inform voters of the content and the effects of proposed law changes for which petitions are being circulated (or have been certified for the ballot) with websites and brochures. Some states allow proponents and opponents each to prepare arguments for or against the proposals for inclusion with the petitions or to be made available online.

In Michigan, opponents of specific ballot proposals have made a regular practice of challenging whether proposals conform to federal or state provisions or are in compliance with existing federal or state laws. Some of these issues can be addressed by allowing opponents to express their complaints at the outset of the process. Some states involve legislative bill drafters, attorneys general, and the courts in the analysis of proposal language at the outset of the petition circulation process instead of at the eleventh hour, as has been the practice in Michigan. These states allow a step in the process for proponents to amend their drafted language to address nonconformity with constitutional or statutory provisions, to fix grammatical or typographic errors, and to address unintended consequences of changes not foreseen by drafters of the proposals.

Creating a process that replicates what every other state uses would reinforce the ministerial role that the Board of State Canvassers is intended to perform. They would not remove all of the controversy from the initiative and referendum process, but these changes would go far in creating confidence in the process.

Eric Lupher is president of the Citizens Research Council of Michigan