tbreport

It’s a mystery why Michigan Democrats appear so worried that Gov. Rick Snyder’s new TV ads on behalf of state House Republicans might be doing a lot of damage to Dems’ prospects in this year’s general election.

Snyder’s ad campaign ties together kudos for his own performance as the state’s CEO with the candidacies of GOP candidates for the state House, some incumbents and some not. Democrats counter that the ads are subsidized by “dark money,” unaccountable to the news media and general public. Besides, they say, Snyder’s economic record is nowhere near as great as he claims, and he and his administration single-handedly caused the “Flint water crisis.”

In fact, the most recent survey of the popularity of the 50 U.S. governors shows that, thanks to the relentless acrimony heaped on Snyder by his Democratic opposition, Snyder is the fourth most UNpopular governor in America.

So how can pro-Snyder TV ads possibly help Republican candidates running for the state House, where the GOP now holds a 16-seat majority that could evaporate on Nov. 8? More likely, any publicity tying Republican candidates to Snyder will only hurt them.

Morning Consult’s most recent survey of the nation’s governor’s shows that only 33% of Michigan’s registered voters approve of Snyder’s job performance, while 61% disapprove. That’s worse than all but three of the 50 state CEOs — Sam Brownback (R-Kansas), Dan Malloy (D-Conn.), and Chris Christie (R-NJ).

Morning Consult surveyed 71,900 registered voters in all 50 states from early May of this year through early this month. Survey respondents were asked whether they approved or disapproved of their governors’ job performance.

Eight of the 10 least popular governors are Republicans, including two from the Midwest — Illinois Gov. Bruce Rauner, who got the fifth-worst rating in the poll, and Wisconsin Gov. Scott Walker, who ranked 10th worst.

On the other hand, eight of the top 10 MOST popular governors are Republicans as well, including the top three — Dennis Daungaard of South Dakota (74% approval rating), Larry Hogan of Maryland (70%), and Charlie Baker of Massachusetts (also 70%). Hogan and Baker were elected in 2014 in heavily Democratic states.

How about Republican Gov. John Kasich in the neighboring state of Ohio? He’s in the middle of the pack, but with positive numbers. He’s 23rd in popularity, with 57% approving of his job performance, 33% disapproving — the same as California’s Democratic governor, Jerry Brown.

Historically speaking, Snyder may get major credit for taking on Detroit’s bankrupt city government, for the “Grand Bargain” that saved the Detroit Institute of Arts, for championing the building of the Gordie Howe International bridge, and for balancing the state’s books, but he’s still operating under a cloud that he allowed to form because he failed to address the Flint mess early on, and with sufficient urgency.

Whether Snyder’s numbers can improve between now and 2018, when his term ends, depends on the Nov. 8 election results and whether he develops the political acumen in the next two years that he failed to demonstrate in his first six.

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Dick Posthumus might still become Governor of Michigan, but he wouldn’t like the circumstances and the pay isn’t very good, either.

Posthumus, a former state Senate Majority leader and Lieutenant Governor, lost a fairly close race for the state’s top job to Democrat Jennifer Granholm in 2002. He now serves as a senior adviser to the current governor, Rick Snyder.

But Posthumus tops a list of five designated “emergency successors” to Snyder if something catastrophic happens to the incumbent, according to an obscure law enacted in the “bomb-shelter” paranoid 1950s that almost no one knows anything about. More about that later.

The reason all this is worth thinking about is because a new television series, “Designated Survivor,” is scheduled to kick off Sept. 21 starring Kiefer Sutherland.

The plot goes something like this: During a presidential State of the Union Address at the U.S. Capitol, an explosion kills the President, Vice President, Speaker of the House and President Pro Tempore of the Senate and all the members of the cabinet except one. Sutherland plays that one surviving cabinet officer who has been designated not to attend that State of the Union. He is called the “designated survivor” (in the TV pilot Sutherland plays the Secretary of Housing & Urban Development). Despite that cataclysmic event, government would still go on. Someone (Sutherland, in this case) would be in charge.

The post-World War II Republican majority Congress, elected in 1946 — the same Congress that also submitted to the states for ratification a presidential term limits resolution which later became the 22nd Amendment — enacted the Presidential Succession Act of 1947. Before the 1947 law, the House Speaker and President Pro Tem had not been in the line of presidential succession since 1886. In 1886, cabinet secretaries were placed in line of succession after the VP in the order that their cabinet departments had been created. But the new 1947 law changed that. It restored the Congressional leadership after the Vice President, to be followed by Secretary of State, Secretary of the Treasury and Secretary of Defense (a new department that had just been created to replace the old Secretary of War and the Navy department), and THEN the remainder of the cabinet secretaries, with seniority based on the order their departments had been created over time.

Bob LaBrant, author and senior counsel with the Sterling Corporation in Lansing, observes that Michigan has its own constitutional order of gubernatorial succession in Article V, Section 26: Lieutenant Governor (LG), the elected Secretary of State (SoS), and the elected Attorney General (A.G.).

This line of succession applies not only if the governor dies, resigns, or is convicted and removed on impeachment charges, but also if the governor becomes disabled or is merely absent from the state. For example, when former Gov. Granholm  and LG John Cherry were out of the state attending a Democratic National Convention anytime between 2003 and 2011, Secretary of State Terri Lynn Land, a Republican, became Acting Governor for a few days.

Stories are legendary (and perhaps apocryphal) about how Democratic Lt. Gov. T. John Lesinski (1961-65) commanded the state police to provide him with Gov. George Romney’s car when Romney was at some out-of-state speaking engagement. Lesinski, as Acting Governor, would puff away on his favorite cigar in the back of the limo, hoping to provoke a response from Romney, a strict Mormon who didn’t drink or smoke, when the Republican incumbent returned to Michigan.

Article V, Section 26, of Michigan’s Constitution has parallels on the issue of gubernatorial disability to the 25th Amendment to the U.S. Constitution ratified in 1967. The inability of the governor to perform his or her duties is to be determined by a majority of the Supreme Court after receiving a joint request from the House Speaker and Senate Pro Tem. The state Supreme Court on its own initiative can determine if, or when, the inability ceases.

The 25th Amendment also provided the means for Gerald Ford to eventually become President by allowing President Richard Nixon to appoint him to fill the vacancy created when Vice President (VP) Spiro Agnew resigned as part of a plea deal following a bribery indictment in 1973 (he was later convicted). Under the 25tth Amendment, the Ford VP nomination required confirmation votes in both the House and Senate. When Nixon resigned the presidency in 1974, VP Ford became President.

But no Michigan Constitution (including the current one) has ever made any provision for filling a vacancy in the office of Lieutenant Governor. The last time LG was vacant (1969-71) was when William Milliken became Governor after George Romney resigned to become Secretary of Housing and Urban Development  (HUD) in the new Nixon Administration.

In 1963, the Michigan legislature did enact a law permitting the governor to appoint a LG to fill a vacancy with the advice and consent of the Senate. That law was later amended to permit the Senate, by resolution with a record roll call vote, to appoint an acting LG of the same party as the governor (PA 8 of 1969). It was under these circumstances that Senate President Tom Schweigert (R-Petoskey) was named acting LG by the Senate although there was no constitutional basis for doing so. If Milliken had resigned the governorship at that time, Secretary of State James Hare, a Democrat, would have become Governor, not Schweigert. In two A.G. opinions that followed, Democrat Frank Kelley said those statutes did not cure the deficiency and that there is no authority to fill a vacancy for LG.

The only governor to die in office was Republican Frank Fitzgerald., who was Michigan’s Grover Cleveland. Fitzgerald, like President Cleveland, was the only chief executive to serve non-consecutive terms, being elected in 1934, losing in 1936, and then reclaiming the office from the man who had beaten him two years earlier, Frank Murphy, in 1938. But then Fitzgerald died only two and a half months into his second term. He was succeeded by a SUPER Grover Cleveland — Luren D. Dickinson, who had just been elected to his SEVENTH non-consecutive two-year term as LG in 1938 after two earlier stints in the office (1915-21 and 1927-33). At age 79, Dickinson became the oldest man ever to serve as Michigan Governor, but he couldn’t win a full term on his own in 1940, being defeated by Democrat Murray Van Wagoner.

After losing the 1940 general election, Dickinson “appointed” Mathilda Dodge Wilson, an heiress to an automobile fortune, to become the first female LG. She “served” only about six weeks before their terms jointly ended, and there is considerable legal doubt that her appointment by Dickinson was legal.

There is no doubt, however, that a governor can fill vacancies in the offices of Secretary of State and Attorney General. No confirmation vote is required. That’s how Frank Kelley became A.G., eventually serving a national record 37 years in the office. Kelley was appointed in late 1961 by Gov. John Swainson to replace Paul Adams when the latter resigned to accept a Swainson appointment to the state Supreme Court.

State Senator Steve Bieda (D-Warren) wants to clean up the whole LG mess. In the current session of the 98th Michigan Legislature, Bieda has introduced two Senate Joint resolutions to amend the 1963 Michigan Constitution to provide for filling a vacancy in the office of LG. To place that question on the ballot for voter approval requires a 2/3 majority in each legislative chamber. No hearings have been held and no votes taken on either resolution. This week is the deadline for the Legislature to place any constitutional amendments on the Nov. 8 statewide ballot.

Bieda’s SJR P would have the governor call a special election to fill a LG vacancy. Such an amendment could possibly restore the T. John Lesinski experience with a LG of one party and a governor of the other. Accordingly, it will never get a vote in a legislature controlled by Republicans, who wrote the current Constitution getting rid of the historic “split” possibility. Besides, with a Republican governor ensconsed, why take a chance on an election that might produce a Democratic LG?

Bieda’s other resolution, SJR Q, is far more sound. It provides that, in the event of a vacancy, the governor would nominate a LG who would take office upon confirmation by a majority vote in both the state House and Senate, a requirement missing in Article V, Section 22, of the state Constitution that provides for filling vacancies in the offices of SoS and A.G.

Finally, let’s look at something few know about. Back in 1959 at the height of the Cold War, when it was common for students to do “duck and cover” drills in preparation for a possible nuclear attack on Michigan, the GOP-dominated Legislature passed and Democratic Gov. G. Mennen Williams signed into law PA 202 of 1959, the Emergency Interim Succession Act. This law provides that the governor, SoS, and A.G. each designate five people to assume the duties of their offices and serve as emergency successors should a disaster, enemy attack or civil disorder prevent the exercise and discharge of their duties by the lawful incumbent(s). However, only the five selected by the governor may serve as governor (MCL 31.4). If you’re on the “List of Five” for SoS or A.G., you can take over only that office as an emergency interim successor, but not governor.

This statute also provides that the Senate President Pro-Tem and the Speaker of the House, in that order, should follow LG, SoS, and A.G. to become Acting Governor as a result of a catastrophic emergency.

Using that scenario, if a disaster killed the governor, LG, SoS, A.G., Senate Pro-Tem and the House Speaker, the first person on Gov. Snyder’s list would become Acting Governor, followed by the remaining four, in order, if anything should happen to #1.

Who IS #1? Dick Posthumus. The other four on the “Doomsday List,” although unelected, could become Michigan’s acting governor — #2, Col. Kriste Etue, Director of the State Police; #3, Nick Khouri, State Treasurer; #4, Keith Creagh, Director of the Dept. of Natural Resources; and #5, Nick Lyon, Director of Health & Human Services.

Gov. Snyder’s list includes three new names since earlier lists he submitted to the Office of the Great Seal — Etue, Khouri and Lyon, who replaced former DHHS director Maura Corrigan, former Dept. of Environmental Quality Director Dan Wyant, and former Dept. of Licensing & Regulatory Affairs Director Steve Hilfinger.

Dick Posthumus gets no extra pay as Acting Governor if he is needed. The Act says any emergency interim successor called upon to exercise the powers and duties of the office shall receive no additional compensation except for his or her necessary and actual expenses.

Under the Act, the Legislature (if there is one) may terminate the authority of emergency interim successor at any time. An election to fill the vacancy shall be held within “one year” of the disaster which caused the emergency interim successor to become Acting Governor. Any disputes arising under PA 202 of 1959 shall be determined by whoever is exercising the powers and duties of Governor. The chief justice of the Supreme Court (assuming there still is one) shall determine all disputes regarding the office of Governor.

Curious for more? Who would assume the duties of SoS if something happened to her and there was nobody above her in office to make an appointment to fill the vacancy she left? SoS Ruth Johnson’s list runs as follows: #1 Michael J. Senyko, Chief of Staff; #2, Rose M. Jarois, Director of Department Services Administration; #3, Michael L. Wartella, Director of Customer Service Administration; #4, William R. Kordenbrock, Director of Legal Services Administration; and #5, Christopher M. Thomas, Director of Elections.

How about the same for Attorney General? A.G. Bill Schuette has designated #1, Carol Isaacs, Chief Deputy Attorney General; #2, Matthew J. Schneider, Chief Legal Counsel; #3, Aaron Lindstrom, Solicitor General; #4, B. Eric Restuccia, Assistant Solicitor General; and #5, Denise Barton, Practice Group Manager.

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The Michigan Republican Party has just lost three straight HUGE court decisions on straight-ticket voting (STV), and it’s primed to lose a fourth next week in the U.S. Supreme Court.

Should straight-ticket voting be allowed to continue in Michigan, where it’s been in place for the past 125 years? No, says the Republican-controlled Michigan Legislature (with Republican Gov. Rick Snyder’s consent), according to a new law passed in late 2015. Yes, for the time being at least, say federal judges on two different courts — we’ll decide later whether maybe it can be abolished come 2018.

Why is this important? Because the Michigan GOP is convinced it’s been victimized by STV over a number of elections in so-called “down-ballot” races as a result of a large percentage of Democratic voters casting robotic “one party fits all” votes by checking a single box at the top of the ballot, meaning that that their votes go to ALL the candidates of the political party whose nominee is at the top (Barack Obama? Hillary Clinton?).

This year, that would include not just candidates for, say, the University of Michigan Board of Regents but also countywide and county commissioner offices and township offices as well. Republicans, on the other hand, believe voters should be intelligent and informed enough to make decisions on each and every office individually on the ballot and should be willing to work their way down the bedsheet, checking off their preferences for each and every partisan office. Forty other states agree with the Republican perspective, but that doesn’t seem to be what’s at issue here.

Instead, what really counts is whether a Hillary Clinton blowout win in Michigan on Nov. 8 might drag down GOP candidates in “down-ballot” races as well, even in districts gerrymandered to favor Republicans. That’s much more likely to happen if STV is in place than if it isn’t, so the thinking goes.

Which brings us to the next thing Republicans have to worry about — those gerrymandered districts. Are they guaranteed to last through the end of this decade, if not beyond? Maybe not, if federal courts make certain decisions. In fact, that’s what Democrats, in Michigan as well as nationally, seem to be banking on. They believe that events are converging in their favor for a political breakthrough that could put them back in charge of Congressional and state legislative reapportionment in 2021.

Let’s put this discussion in some perspective:

Former U.S. Rep. Mark Schauer (D-Battle Creek), the Dems’ 2014 gubernatorial nominee, spoke recently (on a MIRSNEWS podcast) about the “Advantage 2020” program he’s directing for the Democratic Legislative Campaign Committee, a national group whose goal is to win state House and Senate seats and governorships nationally so that Democrats are positioned to control “drawing the lines” for new Congressional and legislative district maps in 2021-22 following the 2020 census. Absent total control of the governor’s office, state House and Senate in each state, Schauer wants Dems to at least be able to deadlock the process by controlling a minimum of one chamber or the governorship in order to throw 2021 redistricting in a particular state into the courts.

Schauer was asked whether he expected a ballot question to create an Independent Redistricting Commission (IRC) to be on the Michigan ballot in 2018 or 2020. He punted, claiming that all he was responsible for was trying to win as many legislative seats as he could over the next three election cycles. Schauer pointed out that, outside of Michigan, only about half the states allow initiatives to amend state constitutions by collecting petition signatures to place an IRC proposal on the ballot.

What has never been adequately explained is why prominent Democrats or organized labor or the non-profits of the professional “reform” industry (Common Cause, the Joyce Foundation, the Michigan Campaign Finance Network and others) simply walked away from funding a petition drive to place an IRC proposal on the Michigan ballot in 2016, a high voter turnout presidential year when such a proposal might have fared well with voters.  In fact, one of the Dems’ allies — the League of Women Voters — held redistricting reform workshops all across the state a year ago. The left-leaning Detroit Free Press and Michigan Public Radio’s Jack Lessenberry could barely contain their enthusiasm for such an amendment. Public opinion on the issue of redistricting and gerrymandering is at a peak in 2016 because of last year’s U.S. Supreme Court decision (on a 5-4 vote) in Arizona State Legislature v. Arizona IRC.

The answer may be that Democrats and labor may be gun shy about putting all their eggs into a “one ballot question” basket. After all, they devoted over a million dollars to try to get “Reform Michigan Government Now!” on the ballot in 2008, only to see their thinly-disguised rewrite of Michigan’s Constitution, including changes in the redistricting process, blocked from the ballot by state courts. Then, Big Labor qualified two proposals for the 2012 ballot, one enshrining collective bargaining rights in the Constitution, the other giving public employee status to home healthcare workers by allowing the SEIU to organize them as dues-paying union members. Despite spending several million dollars, the effort backfired when both proposals were soundly defeated by the voters and, in retribution, the GOP-controlled Legislature enacted Right to Work statutes in the 2012 lame duck session (with Republican Gov. Snyder signing the bills).

Or it could be that Democrats/Big Labor/Reformers think there now may be a cheaper and easier way to achieve their goals — in the federal courts.

It’s easy to see why Michigan Democrats are frustrated. Despite their success in statewide presidential and U.S. Senate elections, where they have won 14 of 15 contests since 1988, Dems have generally been in the political wilderness in Michigan for more than three decades.

Democrats have held total control over both chambers of the state Legislature for only one year since the 1982 election — 34 years ago. A Democrat has been in the governor’s office only 16 of the past 54 years. Republicans have won statewide Secretary of State and Attorney General elections in 10 of the last 12 elections. These are offices that Democrats had swept for four straight decades between 1954 and 1994. Supreme Court? Republican justices have controlled it for all but five months during the past 18 years.

The Democrats’ best chance to begin turning this nightmare scenario around is to win back the state House this year by picking up nine seats. All House Republicans who were elected in the 2010 GOP wave (a 20-seat gain) are being rotated out of office at the end of this year because of term limits, so there are plenty of open seats in marginal districts ripe for the picking if Dems can ride a Hillary avalanche.

Since 1960, Michigan has generally followed a pattern of the non-incumbent party winning the governor’s office when the contest is open — Democrat James Blanchard after Republicans Romney-Milliken; Democrat Jennifer Granholm after Republican John Engler; and Republican Rick Snyder after Granholm. A Democrat — whether it’s U.S. Rep. Dan Kildee or someone else — may well be the favorite in 2018 to beat whomever the Republican nominee turns out to be.

That leaves the state Senate and what to do about the Michigan Supreme Court as the next puzzle for the Democrats to solve.

In the Senate, Republicans enjoy a 27-11 super majority. Even though 19 Republican incumbents will be termed out in 2018, it’s hard to imagine that Dems could capture eight or nine of those districts in a single election in order to organize the body in 2019, especially given the map that was drawn in 2011.

But what about a NEW Senate map? The answer may be provided by another state. A potentially landmark case, Whitford v. Gill, will soon be decided. This lawsuit tests whether the 2011 Wisconsin state Assembly district map is so partisan a gerrymander that it should be thrown out for violating the 14th Amendment to the U.S. Constitution.

A four-day trial has already been held in Madison, the Wisconsin capital, before a three-judge federal panel this past May 24-27 (interestingly, two of the three judges were appointed by Republican presidents, but that hasn’t stopped them from seeming to sympathize with the Democratic plaintiffs).

This Wisconsin case attempts to establish a “manageable standard” with a measurement brought before the Court called an “efficiency gap.” A University of Chicago professor, Nicholas Stephanopoulos, helped to create the new metric. An “efficiency gap” is simply the difference between the party’s respective “wasted” votes in an election, divided by the total number of votes cast. Wasted votes are defined as ballots that don’t contribute to victory for candidates, and they come in two forms — 1) Lost votes cast for candidates who are defeated; and 2) Surplus votes cast for winning candidates but in excess of what is needed to prevail. According to Stephanopoulos’s metric, a political party can be accused of gerrymandering when it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing an “efficiency gap” that is too large.

Wisconsin Democrats believe the courts can use the “efficiency gap” calculation in the same way the courts currently look at population disparities between districts. For example, state legislative population differences under 10% are presumed to be valid. Population differences over 10%, however, shift the burden to the state or federal government to justify the reasons for the population disparity between districts.

Wisconsin Democrats are asking the three-judge panel to establish an “efficiency gap” standard. The current Wisconsin Assembly plan had a pro-Republican “efficiency gap” of 13% in 2012 and 10% in 2014. The Wisconsin plaintiffs want the judges to establish a standard wherein a wasted vote score under a certain percentage results in no finding of partisan gerrymandering. However, a wasted vote score over a certain percentage shifts the burden of  justifying those wasted votes to the State, which must show that it was trying to comply with the Voting Rights Act or to draw “compact” districts. If the State cannot justify the higher wasted vote score, the Court would make a finding of an unconstitutional partisan gerrymander.

In the Wisconsin litigation, the Democratic plaintiffs introduced evidence during the trial to show both “discriminatory intent” and “discriminatory effect.” Therefore, they claim, there was no reasonable justification for the 2011 state Assembly district plan. It is in proving discriminatory effect that past plaintiffs have failed to convince the U.S. Supreme Court, in all previous cases that have come before it, that the Court is being asked to review an unconstitutional partisan gerrymander.

A decision by the Wisconsin federal panel could come this month. Either way the panel rules, the case is on a fast track for review by the U.S. Supreme Court during the high bench’s upcoming 2016-2017 term beginning October 3. With a three-judge federal panel, rulings go directly to U.S. Supreme Court, bypassing the Circuit Court of Appeals.

A decision by the U.S. Supremes by late June of next year that adopts the efficiency gap analysis as a workable standard to prove a partisan gerrymander would allow Michigan plaintiffs to file a similar claim in federal court in Detroit against Michigan’s 2011 state Senate plan, where Democrats have enjoyed favorable court rulings on public body ballot question communications, union PAC payroll deduction, and straight party voting. They might even get really lucky and draw District Judge Gershwin Drain, appointed by President Barack Obama.

With a 2017 U.S.Supreme Court ruling as precedent, a lawsuit challenging the 2011 state Senate district plan could lead to a redrawing of Michigan’s 38 state Senate districts in time for 2018 elections either by the Legislature or, if it deadlocks, the court itself.

This is all dependent on the U.S. Supreme Court adopting the efficiency gap analysis used in the Wisconsin Assembly case, says Bob LaBrant, who has long been Michigan’s top political legal historian.

LaBrant points out that Justice Anthony Kennedy has been looking for a workable partisan gerrymandering standard since the Court’s (5-4) decision in Veith v. Jubelirer (in 2004). Although Kennedy did not find an unconstitutional gerrymander in that case, he did not foreclose the possibility that judicially manageable standards for gerrymandering could be developed in future cases brought to the Court. With or without Kennedy’s vote, a replacement for the late Justice Antonin Scalia (perhaps Merrick Garland, who is now closing in on Louis Brandeis’s record for number of days since nominated without a U.S. Senate confirmation vote) almost certainly would be a fifth vote for adopting the efficiency gap as a workable standard to prove a partisan gerrymander if Hillary Clinton is elected president.

Michigan’s current state Senate districts fail the efficiency gap analysis used in the Wisconsin litigation. Democrats in 2014 received just 11 seats in the Michigan Senate (29% of all seats) despite receiving 49% of all votes cast for state senator in the 38 districts across the state.

In 2012 and 2014, Michigan’s state House maps also failed the efficiency gap metric used in Wisconsin. However, it should be noted that Michigan Democrats are now saying that they can win majority control of the state House under the current House map. So, if they do gain control, do they really want the map thrown out and a new election held?

It could make for an interesting lawsuit, undoubtedly with former Michigan Democratic Party Chairman Mark Brewer at the center of it. Brewer may have lost his quest for a seat on the Macomb Co. Board of Commissioners in the August 2 Democratic primary, but he’s still a force in state politics. It was Brewer who filed the lawsuit in federal district court that led to Judge Drain’s shocking injunction against allowing Michigan’s new ban on straight ticket voting to be used this year, pending a final judgment. Brewer also spearheaded the petition drive that led to the 2002 referendum that overturned an earlier attempt by the Michigan GOP to terminate STV, a vote cited by Drain and by the U.S. Sixth Circuit Court of Appeals in allowing Drain’s injunction suspending the ban to stand.

Brewer was the longest-serving Democratic chairman in the nation (and the longest-serving of either party in Michigan history) before he was muscled aside by Hillary Clinton acolytes (and others) in 2013. He may have been a polarizing figure as chairman, but it’s difficult to argue that anyone else could have been more effective (Butch Hollowell, are you listening?), or that either of his successors have been an improvement.

In fact, Brewer has done more to help his fellow Michigan Democrats since 2013 than anyone else in his party. Republicans should be very worried that he’ll do even more in the next couple of years — at their expense.

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Greatest performance by a Michigan athlete at the just-concluded Rio Olympics? No question, it was Flint’s Claressa Shields, winning her second gold medal in her boxing weight division at age 21.

Shields is the first female athlete in the world ever to win two straight Olympic gold medals (2012 and 2016) in boxing. No American male ever has done that. Shields joins a handful of boxers worldwide — the others are male — who have won at least two gold medals in their Olympic careers. Only one U.S. boxer has matched her pair of golds — and that was a male flyweight/bantamweight in 1904 who won two golds in two different weight divisions at the same Olympics (can you believe that?)

The question now is: What next for Claressa Shields? Go pro? Is there such a thing as a professional female boxer? Yes, but it’s been a chronic loser for any female pugilist who has gone down that road — including Muhammed Ali’s daughter. Mixed martial arts? For Shields, she would have to be perfect at it to maintain the image and reputation she now has, and there’s a danger that she could be seriously injured.

What about all the “endorsements” that she’s now hoping for after getting virtually nothing during the four years following her first gold medal performance in 2012? That’s dicey, too. A female boxer is a tough sell compared with the women gymnasts, swimmers, and track stars that are already out there in force. Shields even had bad luck in the timing of her historic Olympic win — she triumphed at the worst possible time. The “Today Show” hosts had all packed up in South America and left for New York, so there were no live appearances on network TV the morning after receiving the gold.

Here’s a better idea: JOIN THE ARMY! Or at least some branch of the U.S. Military.

If that sounds outrageous, consider that, for the past two years,  Shields had to escape to the Olympic Training Village in Colorado Springs, CO, to live and train. She had to rid herself of all the personal problems that beset her in Flint — and this was BEFORE the so-called “Flint Water Crisis.”

Have there been other Olympic athletes in the military? Well, yes, like 13 competitors and three coaches from the Army alone just in this year’s Olympics. How about the past? Remember Leon Spinks, who was in the Marine Corps when he won a gold medal as a light-heavyweight in 1976 and then, two years later, upset Muhammed Ali himself for the World Heavyweight Championship? Or we could go outside boxing and point to Marine First Lieut. Billy Mills, one of the great stories in Olympic history. Mills, orphaned at age 12, was an Oglala-Lakota-Sioux from South Dakota who became the only American ever to win the 10,000 meters race when he roared to victory at the 1964 Tokyo Olympics.

Shields should consider joining up with the U.S. military NOW. She might be even better off if she’d done so immediately after graduating from Flint Northwestern High School in 2013. Without the military or anything else, the only thing she had for sure in 2012 was a $25,000 stipend from the U.S. Olympic Committee as a reward for winning the gold. And that’s all she’s got this time.

By contrast, in the U.S. Military (whether it’s Army, Navy, Air Force or Marines), Shields would have room and board provided (she’s been getting $3,000 per month from the Olympic Committee while she was in Colo. Springs the past two years), a monthly paycheck and an enlistment bonus. She would be assigned to Army (or some other service) special services after basic training. In the Army, she would serve at Fort Collins in Colorado near Colorado Springs and fight and train on the U.S. Army Boxing Team.

From Fort Collins, she could compete in national and international tournaments and in inter-service competitions. She could train all over the world on the U.S. Army’s dime and let the Army’s public relations machine promote her as the soldier seeking her third Olympic gold. That would be in Tokyo, when at age 25 she would just be entering her physical prime, and maybe even the 2024 Olympics (Michael Phelps, are you reading this?). She could win not just a third but a fourth gold medal at age 29 (Hungary’s Laszlo Papp won a record three gold medals in boxing in 1948, 1952 and 1956).

Would she ever want to bear children? She’s already offered to adopt a relative’s progeny. If so, in the Army she’d have child care and maternity leave, after which she could go back to boxing. After her career as a combatant, she would almost certainly be able to secure a coaching position on the U.S. Army boxing team (Army Sgt. Joe Guzman on this year’s U.S. team is a good example) or elsewhere in the Special Services program until she could retire with full benefits after 20 years at age 41. Fact is, she could have done all that at age 38 if she’d taken this step in 2013 after high school.

Claressa Shields, what are you waiting for? If not this, what?

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We’ve all heard of “judicial overreach,” and executive power in both the federal and state governments has increased dramatically for decades while the legislative branch withers. Now, however, the Empire Strikes Back!

The 98th Michigan Legislature has employed a rarely-used time deadline and an obscure legal doctrine called “conclusive presumption” to ensure that its recent bailout of the Detroit Public School (DPS) system cannot be overturned by a judge, or at least it can’t unless it’s challenged in court by this coming week-end.

Many will remember the 2002 movie, “Catch Me if You Can,” with Leonard DiCaprio in the role of real-life serial imposter Frank W. Abagnale. In a sense, the Legislature is claiming that anyone disagreeing with the way it enacted PA 192 of 2016 (with Gov. Rick Snyder’s cooperation) must file suit against the new statute that purports to rescue the DPS WITHIN 60 DAYS, OR IT CAN NEVER BE CAUGHT BEING “WRONG,” even though it probably is.

Translation: A strong case can be made that, because PA 192 is a “local act,” the Legislature needed to obtain 2/3 majority approval in both the House and the Senate for the statute to be valid, but that’s not what happened — in fact, it passed each chamber only by simple majorities, and only because there were some vacant legislative seats. But no judge or court is likely to consider the question of whether PA 192’s enactment is unconstitutional because the only challenge any court received in the past two months was filed in the wrong court and thrown out (by Court of Claims Judge Michael Talbot). The suit, undertaken by a pro bono attorney on behalf of aggrieved Detroit school board members, could be refiled in the state Court of Appeals, but that must be done by Saturday, Aug. 20. Right now, it doesn’t appear that will happen. Maybe the plaintiffs decided they would rather be elected to the new board than see the panel destroyed in court before they can campaign for it.

Here is what is at the heart of this strange story: Buried in PA 192 is the following provision:

— “MCL 380.389 Formation of Community School District; presumption of validity.
Section 389. The validity of the formation of a community district shall be conclusively presumed unless questioned in an original action filed in the Court of Appeals within 60 days after the community district  is created under Section 383. The Court of Appeals has original jurisdiction to hear an action under this section. The court shall hear the action in an expedited manner. The Department of Treasury is a necessary party in any action under this section.”

Interestingly, this section wasn’t in the original DPS bailout bill (HB 5384), introduced by state Rep, Daniela Garcia (R-Holland). It was slipped into a later House substitute for the measure by unknown parties who undoubtedly realized the proposed act would be in trouble in the courts if it was ever litigated.

The other unusual provision found in Section 389 is the introduction of a concept known as “conclusive presumption” in Michigan constitutional law. An example of this concept might be the presumption that it is irrebuttable that a child born to a married couple is considered the child of the husband (that is, you can’t argue with it even if there’s ample evidence that the husband is not the father). The law simply does not allow some presumptions to be disproved, no matter how strong the evidence to the contrary. These are called “conclusive presumptions.”

But how often are “conclusive presumptions” found in Michigan Compiled Law? Hardly ever. The Ballenger Report asked Bob LaBrant, Michigan’s pre-eminent political legal historian, how prevalent “conclusive presumptions” are in state statutes. LaBrant could find only a dozen references to “conclusive presumption” in the MCLs, and none of them rose to the level of Section 389 of PA 192, which hinges on an important clause of the current Constitution (Article IV, Section 29).

“What the Legislature did with PA 192 is extraordinary,” says Labrant. “Uses of conclusive presumption have been few, and historically almost all of them have been on low-level issues like transfers of property.”

In other words, if what is happening with PA 192 raises the stakes and sets a new precedent, there is nothing to prevent the Legislature from putting Section 389-type clauses in many if not all other bills it passes, thus rendering moot any legal challenges to the law’s constitutionality after a certain limited time is passed. Maybe it’s the newest wrinkle on the the latest legislative practice of inserting appropriations into bills that don’t seem to require them in order to forestall ballot proposals from being mounted against the new statutes.

As reported previously in The Ballenger Report, the plaintiffs in Moore v Snyder (the one, unsuccessful suit that has challenged the DPS bailout) claimed the definition of “Qualified School District” found in PA 192 can apply ONLY to one school district in the state (Detroit) now and into the future, and if so it was not properly enacted. Moore & Co. are almost certainly right, but it appears they’ll never get their day in court.

Meanwhile, another part of the $617 million DPS bailout package provided for a Nov. 8 general election to fill the seven seats on the new DPS Community School District board. There was/is/will be no primary. The names of all 72 candidates who filed will appear on the non-partisan 11/8 ballot.The new seats on the board will be filled in an at-large election with staggered terms. The two top vote-getters will win six-year terms. The third, fourth, and fifth-place finishers will each receive four-year terms, and the two candidates finishing sixth and seventh will serve two-year terms.

The new Detroit community school board will be smaller than the old 11-member board, whose powers were suspended when a state-appointed emergency manager took over the district in 2009. These upcoming school board elections remind some observers of the failed state legislative attempt in 2002 to have Detroit hold a referendum whether to bring elections to the Detroit city council, whose membership at the time was nine members elected at large. But the state Supreme Court ruled unanimously (7-0) that the enabling legislation was unconstitutional because it failed to receive a 2/3 majority in the state House, thus running afoul of Article IV, Section 29 of the Constitution. Guess what? The same ruling might be expected today on PA 192 of 2016 except for Section 389 and the deployment of “conclusive presumption.”

Bottom line: Enactment of PA 192 is almost certain to lead to numerous lawsuits in the future. Is the 60-day “window” to raise a constitutional challenge a violation of the separation of powers found in Article III, Section 2, of our constitution? Aren’t constitutional challenges within the purview of Michigan’s “one court of justice” provided for in Article VI of our Constitution?

Is “conclusive presumption” itself unconstitutional? Nationally, a growing number of courts have held conclusive presumptions to be unconstitutional (too unfair, and thus a denial of due process). This has occurred most commonly in the area of paternity, because of blood tests that can exclude paternity with 100% accuracy.

Using “conclusive presumption” to exclude proof of unconstitutionality seems an invitation to test that exclusion of proof.

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Yes, it’s the arfs of August, hot and sticky and the world is asleep. The Michigan primary election is history and November seems a long way away. Capitol workmen are frenetically shoring up the building’s basement while the legislature is away for the summer. No important politics, right? Well, maybe a little:

1. BOTH major party presidential campaigns came to Michigan this week, and both claimed to be laying out their “vision” of what they think the economy and tax policy ought to look like in their administrations, if elected. Donald Trump addressed the Detroit Economic Club at the Cobo Center on Monday, and Hillary Clinton spoke in a Warren manufacturing facility on Thursday. This is probably the first time the main combatants in a presidential race have both appeared in the same week to deliver major policy messages since then-President George H.W. Bush, Democratic challenger Bill Clinton, and Independent Ross Perot debated on national television at Michigan State University in 1992. Trump’s performance was most noteworthy for NOT being manic, off-message and crazy populist. Instead, it was a surprisingly buttoned-down recitation of relatively orthodox conservative Republican economic nostrums, with the exception of calling for abolition of the “carried interest” loophole for hedge fund managers and creation of a child care tax credit. Clinton had the advantage of following Trump, so she was able to excoriate what he had said three days earlier 10 miles away, and contrast her own upbeat message about Michigan’s future with what she described as Trump’s “dark” nihilistic vision. It remains to be seen whether anything either Trump or Clinton said will decide anything that voters won’t make up their minds about for other reasons.
2. Litigants grappled in the Sixth Circuit federal Court of Appeals in Cincinnati over whether an injunction barring straight ticket voting should be lifted or overturned. U.S. District Judge Gershwin Drain, an Obama appointee, stunned the political world last month by ruling that the ban enacted by the Legislature last winter was an unconstitutional infringement on minority voting rights, despite the fact that most states have NEVER allowed straight ticket voting (Michigan has been one of less than a dozen that does). Attorney General Bill Schuette has appealed Drain’s refusal to lift his temporary stay against the new law, with the deadline for printing ballots looming in a matter of weeks. The issue is important because barring straight ticket voting would test the GOP’s hypothesis that checking only a single box (or pricking a bubble) helps Democrats. Democrats don’t disagree; in fact, the suit that Drain ruled on was filed originally by former Michigan Democratic Party Chairman Mark Brewer. If Donald Trump flames out at the polls, so the thinking goes, he may drag a whole bunch of down-ballot Republicans down with him, especially if all the electorate thinks about is voting against Trump without seeing what each office has to offer. Stay tuned.
3. The state Court of Claims has thrown out a lawsuit filed by parents and community activists that had challenged the Detroit Public Schools “bailout” by the Legislature back in June on the grounds that approval required a 2/3 majority, not a simple majority of lawmakers in both the state House and Senate. But the judge, Michael Talbot, did not rule on the merits of the plaintiffs’ claim; rather, he opined that the suit had been filed in the wrong court. It had to be litigated in the state Court of Appeals, he said. The plaintiffs, who are relying on pro bono counsel, could re-file their suit there, but the clock is running out — the plaintiffs’ attorneys must file by Aug. 20th and bring the state Treasury Dept. in as a defendant party. If they do that, some legal experts think they have a good chance to win, which would throw the entire DPS bailout into a cocked hat. Schools might not be able to open in Motown this fall.
4. Amir Hekmati, the Flint marine who was imprisoned for more than four years by the Iranian government, was finally released with several other Americans early this year. One of his greatest champions was U.S. Rep. Dan Kildee (D-MI 5), who flew to Europe to meet Hekmati on his way home (Hekmati arrived at Flint’s Bishop Airport on Jan. 21). Now, however, The Wall Street Journal claims that the U.S. essentially paid ransom for Hekmati, because a plane carrying $400 million in cash arrived in Iran just before the regime released the hostages. Republicans have charged that this proves President Barack Obama engaged in a cash-for-hostages deal, which is contrary to U.S. policy. In fact, it’s illegal. Obama himself has denied there is any connection between the cash shipment and the release of prisoners. Rather, he says, the money was the first payment of a $1.7 billion settlement that resolved claims before an international tribunal over a failed arms deal back in 1979. Strangely, though, Congressman Kildee has made no statement about why he believes the Iranians finally agreed to release Hekmati, his constituent, and whether there could in fact have been a “ransom” involved and, if so, was it worth it? The media haven’t asked Kildee, either, or, if they have, nobody has reported what he said. Kildee, who wants to run for Governor of Michigan in 2018, might use this opportunity to stand up for a Democratic president who has taken flak — much as Obama did for the prisoner swap that rescued Sgt. Bowe Bergdahl from the Taliban —  for the way the U.S. government handled this incident, but Kildee has been silent.
5. The chairman of Gov. Rick Snyder’s Relentless Positive Action SuperPac has been charged with sexual harassment, sex discrimination and wrongful termination by a woman 27 years his junior. Multi-millionaire Bill Parfet, great-grandson of the founder of the W.E. Upjohn Co. (now a part of Pfizer), is the target of a lawsuit filed by one Shuang Zhang, who says she has given birth to two of Parfet’s children, the most recent in 2012. Parfet, 69, was the chairman and CEO of Mattawan-based MPI Research, but he’s now the executive chairman of Boston-based inviCRO. Asked about the suit this past week, Snyder stood by Parfet, who has denied the allegations. The governor said he would wait to see how the litigation transpires. Michigan Democrats may not wait that long.
6. “You’re fired!” has a ring to it, but maybe it doesn’t mean quite what it used to. These days, someone can be “fired” by an entity that has no such authority, and maybe the “firee” doesn’t even have to leave if he doesn’t want to. Nevertheless, the Grand Traverse Co. Republican Party this week decided to “fire” from its ranks none other than William G. Milliken, the state’s longest-serving governor, who has endorsed a string of Democrats for various offices over the past dozen years, including Hillary Clinton. Michigan citizens don’t register to vote by political party, and any dues collected by GOP poohbahs at any level are entirely voluntary. Milliken himself had served almost the entirety of his governorship before the sponsor of the resolution purporting to expel him from the GOP had even been born. It was sort of like purging Teddy Roosevelt or Abraham Lincoln because the definition of Republicanism at the time they served was no longer in fashion today. In fact, the resolution finds that “William G. Milliken’s support of abortion by veto of efforts to end public funding in 1978, 1980, 1981 and 1982, to be contrary to the principles of Republicans” despite the fact that many Republican lawmakers at the time voted against the bills, and that both chambers of the legislature were controlled by the Democrats, meaning that any measure that reached Milliken’s desk had to have a substantial number of pro-life Democrats in favor of it. The irony is complete; we live in a different time, when it’s nearly impossible to find a Democratic legislator who’s not pro-choice, or a Republican lawmaker who’s not pro-life. There was almost a Shakespearean quality about the Traverse City GOP’s escapade — the father of the resolution’s sponsor, ex-TC city commissioner Mike Gilman, argued vehemently against the GT party’s action, to no avail, and then his son the sponsor (who had just unsuccessfully challenged the incumbent GOP state representative in the 8/2 primary) wrote it all up in a press release describing his father’s humiliation. To be fair, the exact words used in the resolution say, rather mildly, that “a vote of duly elected delegates” at the Aug. 11 conclave decreed that “the former Gov. William G. Milliken’s status as a Republican be no longer recognized by the Grand Traverse County Republican Party.” Of course, the delegates’ action had the effect of demeaning themselves and dealing another blow to the already-dented GOP brand. But does anyone know Milliken’s reaction? If the 94-year-old ex-governor, who was once chairman of his county’s party, even knows about it, or cares, it probably made his day.

So, was this supposed to be a sleepy “off-week” in Michigan politics?

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How did Michigan’s proud 1st Congressional District — home of defiant Yoopers and self-reliant Trolls — produce two major party nominees this year who have only tenuous connections to their respective peninsulas?

How did Lt. Gen. (ret.) Jack Bergman of Watersmeet, a complete political unknown at the start of the year who had spent four decades in the U.S. Marine Corps outside the district, manage to knock off two well-known, popular politicians who had deep roots in their home towns and had been re-elected countless times in major parts of the enclave, in the Republican primary?

The Upper Peninsula, which before 1965 constituted TWO Congressional districts all by itself, now produces less than half the vote in the 1st CD, which is a sprawling land mass (second-largest east of the Mississippi River) that encompasses all or parts of 32 counties, most of them south of the Mackinac Bridge. The district is considered to have a roughly 55% GOP base.

This year’s major party candidates were, on the Republican side, Bergman; state Senator Tom Casperson (R-Escanaba); and former state legislator Jason Allen (R-Traverse City). For the Democrats, it was ex-Michigan Democratic Party Chairman Lon Johnson and  former sheriff/Iraq war major general Jerry Cannon, both of Kalkaska.

Final results? Johnson over Cannon, about 72%-28%, for the Democrats; Bergman, 38%, Casperson, 33%, and Allen, 29% for the Republicans.

Much is known among political junkies about Allen and Casperson, Bergman not so much. In analyzing what happened Aug. 2, here are some interesting tidbits to consider:

— The Upper Peninsula produced only 32% of the total Republican vote in the August 2 primary. Casperson carried the U.P. portion of the district with 56% of the vote, followed by Bergman with 30% and Allen (who represented the eastern portion of the peninsula for four years) with 13%.

— In the Lower Peninsula (the heart of Allen’s turf when he served for a decade in the state Legislature), it was Bergman, 43%; Allen, 37%; and Casperson, 20%.

— For the Democrats, the U.P. comprised a far larger portion of the primary vote than it did for the GOP (54%). Johnson won the U.P. over Cannon, 74%-26%, and the Lower Peninsula, 69%-31%.

— Not surprisingly, Allen didn’t get as much as 10% of the vote in any U.P. county west of Luce. Bergman didn’t do all that well in the U.P., either. In most counties surrounding the Marquette TV market, where he advertised heavily, he carried only about 20% of the vote. Observers say this was because Casperson was so strong in these environs but also because there may have been some suspicion about whether Bergman was a true Yooper. Evidently, Bergman listed his address as in Louisiana when he gave a campaign contribution on July 31 to Alan Arcand,  who was running for the GOP nomination in the 108th state House district encompassing Dickinson, Delta and Menominee counties. (Arcand lost). There are doubts Bergman can run as well in the general election in the U.P. as Casperson, who is very popular in his district.

— Casperson loaned his campaign $25,000 in the campaign’s final days, and he won a majority of the vote in every county he ever represented, however briefly, Still, he wasn’t able to expand his base south of the Bridge. He also finished a poor third in Chippewa (Sault Ste. Marie), and didn’t get above 29% in any Troll county. His endorsement by the outgoing incumbent, U.S. Rep. Dan Benishek (R-Crystal Falls) didn’t seem to help him that much. Instead of attacking Bergman as a “lobbyist” during the final week of the campaign, Casperson probably should have hammered the former military officer as an “outsider” who hadn’t lived in the district long enough to represent it properly.

— Allen put $60,000 of his own money into the campaign in the final days, and he had nine members of the DeVos family max out for him in contributions. But Allen suffered from not having run for office since 2010, when he lost the GOP primary to Benishek by a measly 15 votes. In politics, out of sight can be out of mind. Allen won Grand Traverse and Leelanau counties, the heart of his old state House district, but he didn’t win either Chippewa or Mackinac counties (although he came close), both of which he represented in the state senate. Allen also trailed badly in Emmet, Charlevoix and Cheboygan counties, all of which were in his Senate fiefdom. His endorsement by state Rep. Pete Pettalia (R-Alpena) and state Senator Jim Stamas (R-Midland) didn’t seem to help him that much because he finished second to Bergman in the Alpena media market. Some argue Allen didn’t seem to realize Bergman was his main threat until the final week-end, although that argument overlooks the fact that a SuperPac funded by unions (Defending Main Street) bombarded the district with $220,000 of “contrast” ads and direct mail lambasting Allen and highlighting Casperson starting 10 days before the election. A counter-PAC responded with a straight negative on Casperson but with nothing positive about Allen during the final five days — this had the effect of helping Bergman more than anyone since the SMS SuperPac was attacking Allen. Additionally, Benishek was on TV and automated phones blasting Allen, and U.S. Rep. Bill Huizenga (R-MI 2) was doing his best to stop money getting to Allen. All this opened the door for Bergman.

— Bergman spent the most of all three candidates, and he wasn’t attacked until the final days of the campaign, and even then ineffectively. Bergman proved to be a strong campaigner, and his “Send a Marine” to Washington battle cry has a ring to it (Bergman is supposedly one of only five lieutenants general in the entire 180,000-member Marine corps).  Some believe Bergman was recruited, or at least encouraged, to enter the race by the same conservative groups that once explored the possibility of persuading ex-state Rep. Dave Agema (R-Grandville), the controversial former Michigan Republican National Committeeman, to enter the race.  Bergman was the only alternative to two “insider” establishment candidates, and he apparently spent some $350,000 of his own cash to at least match what Allen and Casperson came up with. In the last 10 days of the campaign, three different interest groups launched independent ad campaigns, two of which were anti-Casperson and one anti-Allen.

Was Democrat Johnson helped for the general election by Bergman’s unexpected victory? Yes, if the alternative was Casperson, whose popularity in the U.P would have been hard to overcome. Sure, the total U.P. vote on Nov. 8 will be less than in the L.P. portion of the district, but not by as staggering a margin as in the GOP primary (probably about 60%-40% advantage L.P.). The L.P. segment is just as heavily Republican as north of the Bridge, and Casperson would have been the Republican on the ballot in an area where Donald Trump as the party’s presidential nominee is not a liability.

One thing Bergman might consider, however — do what Johnson has been doing for more than a year, and introduce yourself in earnest to your prospective Congressional district.

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Incumbent officeholders at the state and federal levels are rarely defeated in Michigan, but there are other ways to get rid of politicians whom the citizenry decides for various reasons they don’t like. It’s important to note, though, that they hardly ever happen.

At the local level, incumbents are often defeated. In this year’s Aug. 2 primary election, for example, four of the nine Genesee Co. commissioners were ousted at the polls. In Emmet County, all incumbent county commissioners lost.

But the last incumbent state and federal officials to suffer defeat at the ballot box in Michigan were James Blanchard for Governor in 1990; Richard Austin for Secretary of State in 1994; Spencer Abraham for U.S. Senator in 2000; Mark Schauer for the U.S. House of Representatives in 2010; Alton Davis for the state Supreme Court in 2010; Laura Toy for state Senator in 2006; and Theresa Abed and Colleen Lamonte for state Representative in 2014.

However, Michigan provides other options for removing public officials besides defeat for re-election.

Recall is one of them. In fact, Michigan and Oregon were the first two states to provide for recall of elected public officials in 1908. Today, 17 other states also provide for recall of state officials.

But it’s now tougher to recall state officials than it used to be. Under amendments to Michigan’s recall law enacted in 2012, approved petition language has a shelf life of only 180 days. Signatures must be collected within a 60-day time frame within that 180-day window. The 180-day window for petition language approved by the Board of State Canvassers for Gov. Rick Snyder and state Senators Wayne Schmidt (R-Traverse City) and Arlan Meekhof (R-W. Olive) will soon expire.

Only three state legislators in Michigan have ever been recalled: state Senators Phil Mastin and David Serotkin, both in 1983, and state Rep. Paul Scott in 2011.

Recall under both the 1908 and 1963 Michigan Constitutions excluded judges. Impeachment was the only way to remove a sitting judge until the adoption of a constitutional amendment in 1968 creating, in  Article VI, Section 30, a  Judicial Tenure Commission which may recommend to the Supreme Court that a judge be censured, suspended, retired or removed from the bench.

The current (1963) Michigan Constitution, in Article IV, Section 16, provides that each legislative chamber may expel a member with concurrence of two-thirds of all members elected and serving. Four lawmakers have been expelled in Michigan history: state Rep. Milo Dakin in 1887; state Rep. Monte Geralds in 1978; state Senator David Jaye in 2001; and state Rep. Cindy Gamrat in 2015.

Most students know from their high school civics classes that only two U.S. Presidents have ever been impeached by the U.S. House of Representatives: Andrew Johnson (1868) and William Jefferson Clinton (1998). However, in the U.S. Senate, where a two-thirds vote is required to convict, neither President was removed from office.

Impeachment hasn’t been any more effective in Michigan, either. In fact, a case could be made that impeachment isn’t really much more significant than censure, in which an official can be admonished by his or her peers but still remains in office. Impeachment is more like a grand jury indictment, which does not always result in conviction.

Michigan has had four state Constitutions (1835, 1850, 1908 and 1963). Each of those Constitutions had provisions for impeachment of state officers similar to the impeachment provisions in the U.S. Constitution. Yet, in the entire history of the State of Michigan, only two state officers, one of them a judge, have ever been impeached by the Michigan House of Representatives, and only the judge was convicted. Here is that story:

The 1850 Constitution made a number of state offices elected positions, or provided that by statute they could be elected. One of those was state Land Commissioner. In 1871, the Prohibition (abstinence from alcohol) movement was influential in having the Legislature enact PA 79 of 1871, which provided that drunkenness of a public official shall be good cause for his removal from office. On March 19 of 1872, 26 citizens of the city of Lansing filed a petition with state Rep. Ira Grosvenor, a Republican from Monroe County, asking that misdemeanor charges be brought against Charles A. Edmonds, a Republican from Coldwater, who was the elected state Land Commissioner. The petition alleged that Edmonds and his office clerks were engaged in drinking, carousing and visiting places of ill repute.

Rep. Grosvenor presented the petition on March 22, 1872, to his colleagues in the state House, of whom 71 were Republicans (only 29 Democrats). That same day, a five-member Select Committee was appointed to investigate the charges in the petition. The Committee proceeded to investigate not only the drinking and whoring but also allegations of private speculation by Edmonds and his clerks, using their “inside” knowledge. Within five days, the Select Committee issued its report recommending that an impeachment motion be filed against Edmonds. The next day, March 28, the impeachment motion was passed, 79-5, in the 100-member chamber. Three House managers were then appointed to try the impeachment charges against Edmonds in the state Senate.

But then Gov. Henry Baldwin, also a Republican, threw a curve into the proceedings. He sent a message to the Legislature contending that, incredibly, no law existed under which the Senate could proceed to hold a trial of impeachment that might lead to expulsion.

In response to the Governor’s message, the House acted with lightning speed. The next day, a bill was introduced which rapidly advanced to second and third reading and was passed, 78-5. The bill was given immediate effect. In 1872, the Senate had no “five-day layover” rule as is currently found in Article V, Section 26, of Michigan’s current Constitution. Accordingly, the 32-member Senate also acted quickly, suspending the rules and passing the bill, 27-1, on March 30. Baldwin signed it. By the way, the composition of the Senate was also lopsidedly Republican — 27 GOP, just five Democrats.

Here’s another wrinkle — the 1850 Michigan Constitution provided that no impeachment trial in the Senate could commence until the final adjournment of the Legislature. As a result, the impeachment trial of Charles Edmonds did not begin until April 11, after the Legislature had adjourned sine die (they did that in the spring in those days).

Eleven articles of impeachment were leveled against Edmonds. He was charged with corruptly withholding land from sale for the benefit of certain land-dealers in return for money paid to himself and/or his deputies and clerks; engaging in the purchase of state lands sold in his office; deciding that certain lands in the possession of settlers who had failed to file their proof of settlement and occupancy with his office were subject to sale; furnishing secret information concerning such lands to land dealers in whose profits he shared; engaging in the sale of swamp-land script; appointing and keeping in his office clerks of bad habits and character and allowing those clerks to purchase land from his office and sell information to land-dealers; depositing in the state treasury swamp-land script; sending from a post office in Indiana an obscene newspaper he published that was entitled “Every Saturday Night”; and, finally, disgracing himself by drunkenness and committing adultery in the city of Lansing during his term of office.

The trial lasted until May 22, at which time the Senate voted on all 11 articles of impeachment. Edmonds was acquitted of all charges. On some charges, only one senator voted guilty. Some charges were unanimous in Edmonds’s favor, to acquit. However, on three charges a majority of senators found him guilty, but not by the two-thirds vote required to convict and remove him from office. For the curious student of history, the vote on the drunkenness charge was a unanimous “Not Guilty.” On the adultery charge, there was only one “Guilty” vote. So Edmonds survived, but only for the duration of his two-year term. Beginning in 1873, there was a new state Land Commissioner. Politically, Edmonds was never heard from again.

On impeachment, was the Edmonds brouhaha the end of things? No. Bob LaBrant, Michigan’s legendary political legal historian, has unearthed evidence that, nearly three-quarters of a century later, in 1943, one Michael E. Nolan, a Gogebic Co. probate judge, was impeached by the House for padding his expense account by charging excessive fees for marriage licenses. 722 secret marriages were performed in Gogebic County between 1938 and 1942. Judge Nolan was convicted by the Senate and removed from office in 1943 — the only time in Michigan history this ever happened.

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With less than a week to go before the Aug. 2 primary, what’s likely to happen in key races for the state House of Representatives, Democrat and Republican, in districts that are open (because of term limits) or where incumbents might be imperiled? Here’s a breakdown:

2nd State House: Former Rep. Bettie Cook Scott in a nail-biter over Willie Bell, Joseph Tate and Carla Tinsley-Smith (daughter of the term-limited incumbent) in the Democratic primary in a heavily Dem Detroit district.

9th: Sylvia Santana, wife of the term-limited incumbent, wins a seven-candidate Democratic primary against stiff competition in a heavily Dem seat in Motown.

14th: Cara Clemente of Lincoln Park, wife of the termed-out incumbent, should win the Dem primary.

15th: Look for Abdullah Hammoud of Dearborn to win a six-candidate Dem primary to succeed term-limited incumbent George Darany.

18th: Kevin Hertel, son of a former House Speaker, will win the Democratic primary to succeed the termed-out incumbent in a strongly Democratic district.

20th: A tough one to call between engineer Chris Roosen and attorney Jeff Neilson in a Republican primary to try to succeed term-limited incumbent Kurt Heise. Go with Neilson, whose wife is an elected Wayne Co. probate judge.

23rd: Another close contest, this between Trenton City Councilman Steven Rzeppa and Brownstown Twp Clerk Sherry Berecz in a four-candidate Dem primary to try to flip the seat away from the Republicans in November. GOP incumbent Pat Somerville is term-limited.  Go with Rzeppa.

24th: Macomb Co. Commissioner Steve Marino will win the Republican primary and try to hold the seat for the GOP in November against a stiff Democratic challenge. Incumbent Republican Anthony Forlini is term-limited.

26th: No contest here on either side of the ballot, but Royal Oak Mayor Jim Ellison will hold the seat for the Democrats in November with the departure of the term-limited incumbent.

28th: Insurance executive Patrick Green, who is also a Warren city councilman, should win the Democratic primary to succeed fellow Dem Derek Miller, who resigned the seat early this year when he was named Macomb Co. Treasurer. Green will win the general in November.

30th: Diana Farrington, wife of the term-limited incumbent, faces more competition in the GOP primary than political observers might think, but she should survive. Michael R. Notte, son of the late Shelby Twp supervisor, will win the Dem primary, setting up a contentious 11/8 showdown.

31st: Clinton Twp Treasurer William Sowerby will win the Dem primary in the race to succeed the termed-out incumbent, Marilyn Lane, in a heavily Democratic district.

32nd: Pam Hornberger, treasurer of the L’Anse Creuse school board, is a narrow favorite to win the GOP primary against three estimable males. She’s been endorsed by the term-limited incumbent, Andrea LaFontaine.

33rd: Jeff Yaroch, a Richmond city councilman, is in a six-way dogfight for the Republican nomination. He should win it and hold on to the seat for the GOP in November.

46th: Lake Orion accountant Joe Kent should win the GOP nomination to succeed the term-limited GOP incumbent.

50th: Longtime legislative aide Tim Sneller, a Democrat from Burton, will be the next state representative.

52nd: Another nail-biter between Ann Arbor school board member Donna Lasinski and Washtenaw Co. Road Commissioner Barb Fuller for the Democratic nomination. Give Lasinski the edge.

53rd: Yousef Rabhi will be the next Democratic state representative from this Ann Arbor enclave, succeeding the term-limited incumbent.

54th: Washtenaw Co Commissioner Ronnie Peterson should win a six-way Dem primary and go on to be elected the next state representative.

57th: Bronna Kahle, former director of the Adrian senior center,  should win the Republican primary, but she’ll have a battle on her hands in November against the Democratic nominee. Incumbent Republican Nancy Jenkins is term-limited.

64th: Perhaps the most intense three-way Republican primary in the state. We’ll call it for Jackson Co. Commissioner Julie Alexander over former lobbyist John Griffin and Phil Tripp, owner of a string of auto repair shops. This seat was once marginal, but the GOP nominee should hold on to it in November after the term-limited incumbent departs.

66th: Former Van Buren Co. Commissioner Beth Griffin should win her Republican primary and hold on to the seat for the GOP after House Majority Floor leader Aric Nesbitt is forced out by term limits.

70th: Veteran legislative aide James Lower, a former Edmore  village manager, should win the GOP primary and attempt to retain the seat for his party following the departure of the term-limited incumbent.

72nd: The Michigan Freedom Network has endorsed public school teacher Ryan Gallogly of Byron Center, but we’ll go with Tony Noto, a restaurant owner-operator and retired education for the Republican nomination to succeed the term-limited incumbent. Military veteran Steve Johnson of Wayland is also in the mix in this heavily GOP district.

77th: Wyoming restaurateur Tommy Brann will win his GOP primary and retain the seat for his party with the departure of the term-limited incumbent.

79th: A four-way GOP primary that’s really between two candidates — real estate broker Ryan Arnt of St. Joseph and Kim LaSata, wife of a former state rep who is now a sitting Berrien Co. circuit judge. Arnt has been endorsed by the outgoing incumbent, Al Pscholka, and Arnt should prevail.

83rd: Can another Muxlow make it to the state House? It seems so — look for Matt Muxlow of Brown City, son of the term-limited incumbent, to win his primary and the seat in November.

85th: Owosso Mayor Ben Frederick should win his GOP primary. Shiawassee Twp Supervisor Anthony Karhoff should win the Democratic primary. That sets up an 11/8 showdown in a marginal district now held by a  term-limited Republican.

86th. A lot of talent in this five-candidate GOP field to succeed term-limited Lisa Posthumus Lyons. It will probably boil down to Belding attorney Katherine Henry, who has geography working against her, or Thomas Albert of Grattan Township, an investor with state government’s retirement system. The 86th will stay Republican in November.

87th: No Republican primary for Ionia Co. Commissioner Julie Calley, wife of the Lieutenant Governor, and she’ll win the seat in November to succeed the term-limited incumbent.

89th: Commercial banker Jim Lilly of Park Twp should win this contentious GOP primary to succeed the term-limited incumbent in a heavily Republican West Michigan district.

90th. Donald Trump might be surprised that his newly adopted party, the GOP, features a primary match-up between two Hispanic-Americans. The incumbent, Daniela Garcia, the first Republican chicana ever to serve in the state House, will hold off challenger Orlando Estrada and win re-election in November in the second-strongest GOP House district in the state.

92nd: Muskegon Co. Board of Commissioners Chairman Terry Sabo of Muskegon should win the Democratic primary for the very strong chance he’ll succeed the term-limited Dem incumbent.

96th: A spirited race between attorney Brian Elder, a former Bay Co. commissioner, and current commissioner Don Tilley for the Democratic nomination to succeed term-limited Democrat Charles Brunner. Give Elder the edge, and he’ll hold the seats for the Democrats in November.

97th: Gladwin Mayor Tom Winarski is the favorite to win the five-way GOP primary to succeed  term-limited Republican Joel Johnson.

99th: Union Twp. Trustee Brian Hauck should win his GOP primary, but then he’ll face a stiff challenge from the Democratic nominee, Brian Mielke, in November. The winner will succeed term-limited Speaker Kevin Cotter.

100th: Scott Van Singel of Grant, nephew of a former House Republican floor leader, will win his GOP primary and go on to election in November

101st: Mason Co. Commissioner Curt VanderWall should win his GOP primary, but how will he fare against the Democratic nominee, former Rep. Dan Scripps, in November? They’ll be vying to succeed still another term-limited Republican incumbent.

102nd. Fascinating four-candidate race for GOP nomination that appears to be a jump-ball. Give the edge to school psychologist Dr. Ormand G. Hook over Manton Mayor Michele Hoitenga and Morris Langworthy, Jr., who came close to beating the term-limited incumbent, Republican Phil Potvin, six years ago.

103rd: Daire Rendon, wife of the term-limited incumbent, should win the primary and go on to victory in November.

104th: Incumbent Republican Larry C. Inman of Traverse City faces a stiff challenge from conservative activist Jason Gillman, whose father was a longtime TC city councilman. Inman should survive, but it may be uncomfortably close.

106th: Two more hot races, on both sides of the ticket. On the Republican side, give Cheboygan Co. Commissioner Sue Allor the edge over two of her competitors, Congressional aide Jesse Osmer and Jackie Krawczak, president of the Alpena Chamber of Commerce. On the Democratic side, don’t underestimate former teacher Robert Kennedy, but downstate Democrats hope Erin Kieliszewski, wife of the Alpena Co. sheriff, will be their party’s nominee.

107th: Incumbent Republican Lee Chatfield should fend off his GOP primary challenge from Kathy Twardy, a Sault Ste. Marie city commissioner.

108th: Darryl Shann of Bark River, a retired area law supervisor for the DNR, may be the strongest Republican nominee his party could offer in November, but even if he wins his three-way GOP primary he’ll be the underdog against Democrat Scott Celello, the Dickinson Co. sheriff, who should flip the seat to the Dems after the departure of term-limited Republican Ed McBroom.

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A little-noticed lawsuit has been filed in the state Court of Claims challenging the constitutionality of the $617 million financial rescue and restructuring plan for Detroit’s beleaguered public schools, and the plaintiffs appear to have a strong chance to be successful.

Amazingly, those plaintiffs include the elected Detroit school board members, the Keep the Vote/No Takeover Coalition, and Black Lives Matter, who evidently don’t realize that if their litigation is successful, they will have shot off their own toes.

The Legislature’s six-bill plan was signed into law by Gov. Rick Snyder June 21. The measures would retire or refinance the district’s debt and transfer assets from the old Detroit Public Schools (DPS) to a new Detroit Public Schools Community District. Critics have denounced it as a racist scheme that gives DPS far less money than it deserves and allows too much state control. If the critics win their law suit because the plan is ruled unconstitutional, Snyder and the Legislature would be asked to come up with another plan.

They won’t, at least before the Nov. 8 general election. In other words, the plan approved by Lansing lawmakers last month is the best that the critics are ever likely to get. The only other options appear to be a declaration of bankruptcy and/or dissolution of the DPS.

Thomas Bleakley, a St. Clair Shores attorney working pro bono for the critics, filed a lawsuit with the Michigan Court of Claims on July 5 testing whether the entire bailout package (PAs 192, 193, 194, 195, 196 and 197 of 2016) are LOCAL ACTS since the statutes affect only the DPS and none of the other 549 K-12 school districts in the state. The Constitution requires a local act to receive 2/3 majority approval in each house of the Legislature (all of the measures in the six-bill package got only simple majorities, not 2/3). In addition, one section of the Constitution requires that a local act must also receive a majority vote of electors in the local area affected.

This case — Helen Moore et al. v Rick Snyder — drew Chief Judge Michael Talbot of the Michigan Court of Appeals to hear the case. Talbot is one of four Court of Appeals judges who sit as trial judges on the Court of Claims. A single judge hears cases before the Court of Claims with no jury. Appeals are taken to a three-judge panel of the appellate court. The Court of Claims judge who tries the case (in this case, Talbot) cannot serve on a later panel of the Court of Appeals. Helen Moore, the lead plaintiff, is a longtime Detroit activist who is co-chair of the Keep the Vote/No Takeover Coalition.

Bleakley, acting on behalf of Moore & Co., is seeking an order from Talbot to render PAs 192-97 null and void. In one obvious error by the plaintiffs, they include PA 194 among the six new laws even though it would clearly fall outside of their argument on local acts. PA 194 (HB 5387) amends the Public Employee Relations Act (PERA) and has statewide application to all teacher strikes, not just those in the DPS. Talbot could well separate PA 194 from the other five statutes in making his decision.

The plaintiffs in the current lawsuit focus particularly on PA 192 (HB 5384), which they say contains most of the unconstitutional provisions in the package. That act includes language that defines a “qualifying school district” as a district that WAS previously organized and operated as a first class school district. The DPS is the ONLY school district in the state that WAS or has ever been  a first class district. In their brief, the plaintiffs contend that there is no possibility that any other school district in the state could possibly meet this definition, given the effective date of the act as July 1, 2016. The plaintiffs  say specific use of the language “was previously organized and operated” can mean ONLY events that have already occurred in the past. “Was” is the past tense of “is” and must be recognized for its plain and unambiguous meaning.

The Michigan Supreme Court in Dearborn v. Board of Supervisors, 275 Mich 151 (1936) established a two-part test for determining whether an Act is local or general:

— “First, the limiting criteria of the Act must be reasonably related to the overall purpose of the statute.
— “Second, the Act must be sufficiently open-ended so that localities may be brought within the scope of its provisions as such localities over time meet the required criteria.”

As recently as 2012, the Michigan Supreme Court — in Houston et al. v Governor — applied this two-part test for determining whether an Act is local or general. In the Houston case, the high bench ruled that a state law allowing the Oakland Co. Board of Commissioners to reapportion its districts was not a local act because the legislation had transitional provisions ensuring that Oakland County would not be the only county affected in the future.

Who appoints the judges on the state Court of Claims, anyway? The Supreme Court, which names a quartet of appellate judges, many with previous trial court experience. Besides Talbot, the current panel includes appellate judges Cynthia Stephens, Mark Boonstra and Steve Borrello.

As far back as the middle of the 19th Century, acts of the Legislature appropriating public money for a local or private purpose have required a 2/3 vote of the members elected in each chamber of the Legislature (1850 Michigan Constitution, Article IV, Section 45).

That 1850 requirement was retained in the 1908 Constitution in Article V, Section 24. Also in the 1908 Constitution, a new section was added — Article V, Section 30, which said: “The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”

At the 1961-62 Constitutional Convention, both sections were retained with several relatively minor following changes. In the Address to the People, the convention delegates said the purpose of Article IV, Section 29 (previously Article V, Section 30 of the 1908 Constitution) was to protect localities against arbitrary action by requiring local and special acts to receive a 2/3 majority vote by the members of the legislature elected to and serving in each chamber, and a majority vote of electors in the area affected. Repeal of a local or special Act requires only a majority vote (not 2/3) by state legislators in both chambers, and there is NO voter approval required for repeal in the affected area. Article IV, Section 30 (previously Article V, Section 24, of the 1908 Constitution) had only a minor change clarifying that a 2/3 majority vote had to be obtained from legislators in both chambers not only elected to but SERVING if an appropriation of public money or a local or private purpose was involved.

In sum, the DPS agitator-plaintiffs may well secure the most pyrrhic of victories in court — they will blow up the Legislature’s plan while producing a final result that will be far worse for everybody, including themselves and their own school system.

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