A legal challenge to the Voters Not Politicians (VNP) ballot proposal reflects a real possibility that the proposal will be bounced from the 2018 general election statewide ballot.
The VNP petitioners actually drew a favorable three-judge Court of Appeals panel that will make the initial decision on whether to allow the proposal to go before voters. Regardless, the losing side will undoubtedly appeal the verdict to the state’s high bench.
VNP is the result of a citizen-initiated petition drive asking voter approval of a new independent commission to assume responsibility for redrawing Michigan’s Congressional and state legislative district lines after the 2020 census.
The ostensibly non-partisan VNP organization, led by Katie Fahey, was a seemingly all-volunteer effort that filed a near-record number of signatures early this year with the Board of State Canvassers to place a constitutional amendment on the Nov. 6 general election ballot.
However, court filings last week in the state Court of Appeals disclosed that VNP drafters may have made a crucial mistake by failing to take into account that the proposal would abrogate four provisions of the current Michigan Constitution.
Recent case law requires that each provision in the Constitution that would be abrogated in a proposed constitutional amendment must be republished in the petition. The VNP petition did not do that. Now, the VNP legal team is claiming that the statutory “republishing” requirement, which has been on the books since 1941, is unconstitutional, even though a 2012 Supreme Court decision on a “Protect Our Jobs” ballot initiative held that failure to republish an abrogated provision is fatal and that the proposal is therefore ineligible for the ballot.
Also, binding legal precedent from a 2008 decision in the case of Reform Michigan Government Now! (RMGN) stipulates that any eight-page proposal like VNP’s that affects all three branches of government and adds and deletes thousands of words making fundamental changes in the 1963 constitution is a revision of the document, not a simple amendment. The unanimous 2008 appellate court finding (upheld by the Supremes in a 6-1 decision) was that RMGN was a wholesale revision of the Constitution that could not be done by a petition drive. Instead, the court ruled, it could be done only by a Constitutional Convention of elected delegates.
If that judicial logic is applied by the current three-judge panel reviewing the challenge to the VNP proposal, or by the Supreme Court on appeal, VNP could not simply come back in 2019 with corrections to its petitions in which the language of the four abrogated provisions would be republished.
Instead, faced with the reality that their proposal is a revision of the Constitution that could be deliberated only at a new Con-Con, VNP activists would have to make a choice. Either:
1) Return next year with a proposal less radical and narrower in scope, perhaps like the recent Ohio Redistricting Amendment passed overwhelmingly by Buckeye voters last month; or
2) Go the Con-Con route, in which they could seek to enshrine their Independent Redistricting Commission in the state’s basic charter. This Commission, according to VNP, would be selected by a statistically-weighted random draw based on the demographic characteristics of Commission applicants, and it would reflect “communities of interest” and require commissioners to eschew giving political advantage to a political party as measured by accepted standards of “political fairness.”
A Constitutional Convention would first have to be called by Michigan voters. The next regularly-scheduled election on whether to call a Con-Con is 2026, and it’s doubtful Fahey & Co. would want to wait that long.
There is another approach, however, and there is precedent for it. It comes out of the George Romney playbook, and Katie Fahey and her VNP cohorts may want to take advantage of it.
In 1958, the call for a new Con-Con mandated by the old 1908 Constitution failed in a statewide vote. Strangely, the question on whether there should be a Con-Con actually received more Yes votes than No votes, but the 1908 Constitution required that there must be a majority of voters not on the question itself but a majority of the total turn-out by the electorate on everything on the ballot, which that year included races for Governor and U.S. Senator. Because fewer voters cast ballots on the Con-Con question than on the top-of-the-ticket races, the question failed.
But Romney and an alliance called “Citizens for Michigan,” plus the League of Women Voters and the Michigan Jaycees, didn’t want to wait until 1974, which was the next time there would be an automatic referendum on calling a Con-Con. Instead, Romney & Co. petitioned to place on the 1960 ballot a call for a Con-Con in 1961. This proposal also contained language stating that, to be approved, such a call would require only a majority of those voting on the question (not of the entire electorate). It also called for delegates to be selected from all 110 state House districts and all what-were-then 34 Senate districts (the 1908 Constitution required that delegates be elected only from Senate districts). The proposal was approved, and the next year still another election was held to select delegates.
In other words, it took three elections over parts of four years to assemble the 1961-62 Con-Con. But Fahey has demonstrated that she has the grassroots chops necessary to put a Con-Con question on the ballot in 2020. Just as Romney and his Citizens for Michigan in 1961, she has committed volunteers who can be enlisted to run for Con-Con delegate across the state.
If she’s successful, such a convention would likely have an agenda that would go far beyond redistricting .