Jacques: Virus doesn't sanction election shenanigans
The Fair and Equal Michigan ballot campaign has forged ahead with its electronic signature gathering the past month and is preparing to file its petitions this week with the Secretary of State.
Why should you care? Because this has the potential to dramatically change how such citizen-initiated petition drives are handled. If one group is allowed to gather signatures this way, then others should, too.
It’s a precedent the state should be wary of setting — regardless of the immediate challenges of COVID-19 — and not before it’s robustly debated in the Legislature, which sets state election law.
As reported by Gongwer, Rep. Julie Calley, R-Portland, and chair of the House Elections and Ethics Committee, has argued this effort is "entirely unprecedented and not legal," adding that if "election law intended to allow electronic signature for ballot petition collection, it would be in statute.”
Fair and Equal Michigan launched in January and seeks to expand the Elliott-Larsen Civil Rights Act to include sexual orientation and gender identity.
The deadline is Wednesday to turn in more than 340,000 valid signatures. The campaign had gathered about 150,000 the old-fashioned way before the coronavirus brought those efforts to a halt.
If the signatures are approved, the measure would first go before the Legislature, but if lawmakers refuse to take on the matter or adopt it, the proposal would land on the November ballot.
GOP leaders have pushed back against efforts by Democrats and Gov. Gretchen Whitmer to include LGBTQ protections in the law, largely because they have concerns about the impact to religious freedom.
But the immediate issue here is how the campaign has gone about “collecting” signatures. In mid-April the group sent out a press release, indicating it would start moving to the electronic model. And Fair and Equal Michigan is leaning on an executive order from Whitmer and a state law related to electronic transactions, which organizers argue give the initiative the green light.
Yet Whitmer’s order relates more to notarization and the completion of legal documents during the outbreak — not to election-related matters.
And this would be a big stretch in the interpretation of the Uniform Electronic Transactions Act.
“Signing a petition is clearly outside the scope of this act,” says Peter Ruddell, an attorney with Honigman. “Unilateral acts, such as signing a petition, are not allowed under the law.”
Yet state officials have remained mum on the legality of online signature gathering, despite knowing it’s going on.
“We have not received any signatures from Fair and Equal Michigan at this time and so cannot make a determination,” said Jake Rollow, communications director for Secretary of State Jocelyn Benson, in an email Wednesday.
In April, Rollow said the department had "not yet conducted a full legal analysis" on the matter.
Apparently, it still hasn’t.
And Ryan Jarvi, spokesman for Attorney General Dana Nessel, says the “office is not involved at this stage.”
My guess is that is going to change. One of the issues Nessel is most passionate about is fighting for the rights of gay and transgender individuals. And while being in office, she has worked around state law to that end. Last summer, she sanctioned the Michigan Civil Rights Commission’s investigation of discrimination against the LGBTQ community, even though that language doesn’t yet exist in the law.
And Nessel’s wife, Alanna Maguire, co-chairs Fair and Equal Michigan, along with president of Fair Michigan, a statewide LGBTQ group.
Allowing this kind of sweeping change in our state elections could open a Pandora’s box of unintended consequences. Even a pandemic doesn’t make that OK.