It doesn’t look that way, at least anytime soon. The party organization is in a shambles, with seemingly no way out. But wait! Maybe help is on the way from an unusual source that we don’t usually like to rely on— Ohio!
How does that work? Ohio Republicans are in the majority everywhere up and down the ballot, but they’ve just suffered a couple of stinging defeats at the ballot box in statewide referenda on the party’s new bugaboo — abortion.
Here’s how Ohio Republican lawyers might frame the issue for the Michigan GOP:
CAN AN AGGRESSIVE LITIGATION STRATEGY LEAD MICHIGAN’ OUT OF THE POLITICAL WILDERNESS?
The overwhelming passage by Ohio voters of an abortion rights constitutional amendment
earlier this month has caused Ohio Republican legislative leaders to explore enacting legislation
limiting the jurisdiction of Ohio courts to review abortion litigation arising out of the passage of
Proposal One. What does that mean for Michigan Republicans, who, unlike Ohio, do not control
both legislative chambers and the governor’s office?
An alternative strategy has already emerged among Michigan Republicans and especially their legal allies, to
achieve a return to political power reversing the electoral defeats they suffered in 2022.
That strategy is to file litigation in federal court, let the decision in those cases be reviewed at
the Court of Appeals, all with the aim of having a 6-3 United States Supreme Court eventually
overturn past precedent.
In Michigan, two lawsuits have been recently filed and have received only limited media
coverage. The first lawsuit brought by 11 Republican state legislators challenges the citizen
initiatives adopted by 67% of voters in 2018 (Proposal 3) and 2022 (Proposal 2) which voters
adopted with 60% of the vote. Those two proposals expanded voting rights, provided for same
day voter registration, absentee ballot no reason, straight party voting, and early voting. The
plaintiffs claim those changes fall under the “election clause” found in Article I, Section 4 of the
United States Constitution and can only be done by the action of a state legislature not by
“The times, places and manner of holding elections for senators and representatives,
shall be prescribed in each State by the Legislature thereof…”
In an interesting twist, the Democratic controlled legislature codified, and Governor Whitmer
signed into law the provisions of Proposal 3 and 2 into Michigan’s Election Law during the 2023
session. However, an argument can be made that even if the ballot proposals were found
unconstitutional under the United States Constitution, the legislature’s amendments to Michigan
Election Law negates the claim of unconstitutionality.
Recently Right to Life of Michigan and several anti-abortion allies and three Republican
legislators also have filed litigation in federal district court in the western district of Michigan
challenging the passage of Proposal 3 in 2022 that enshrines abortion rights into Michigan’s
The plaintiffs repeat many of the same claims presented in the voting rights initiative legal
challenge. In addition, Right to Life plaintiffs say citizen initiatives are contrary to the provision
in the United States Constitution guaranteeing every state a republican form of government
(Article IV, Section 4). They say citizen initiatives do not allow for checks and balances and the
give and take of amendments present in the legislative process. Challengers also maintain the
right to abortion creates a “super right” that precludes the legislature from enacting abortion
legislation. The 1963 Constitution already contains another “super right” one that forbids the
legislature from enacting a death penalty (Article IV, Section 46).
The United States Supreme Court addressed many of the issues in this litigation in Arizona
Legislature v Arizona Independent Redistricting Commission (2015). That was a 5-4 decision. The
late Justice Ruth Bader Ginsburg wrote the opinion. Her majority opinion was joined by Justices
Breyer, Kagan, Sotomayor, and Kennedy, a Republican presidential appointee, who along with
Breyer are now retired and no longer on the Court. The dissent was written by Chief Justice John
Roberts, joined by Justices Scalia, Alito, and Thomas. The three Trump appointees Gorsuch,
Kavanaugh, and Barrett, were not yet on the Court. Had those three justices been on the Court
in 2015 a far different opinion might have been written.
The retired attorney and election law expert Bob LaBrant points out that, for more than a decade, the Roberts Supreme Court has demonstrated it is not reluctant to reverse precedent: Dobbs reversing Roe, Citizens United reversing Austin, and Students for Fair Admissions, reversing Grutter.
Pursuing this litigation strategy still is a long shot, but it could result in a restoration of the
plenary authority of state legislatures to regulate abortion, redistricting, and voting. In the
immediate aftermath of the success of the Ohio abortion rights initiative, do Michigan Republicans, in
states that have not yet exercised the initiative, or groups like Right to Life, have any other
How would pursuit of this strategy impact Michigan politics?
Before this calendar year’s end, a federal three-judge panel is expected to decide in Agee
v Benson whether the 2021 redistricting maps in Detroit and adjacent suburban communities in
Oakland and Macomb counties violate the federal voting rights act. If such a finding is made, the
next issue is whether the Independent Citizens Redistricting Commission will be allowed a do-
over to draw on their own a remedial map or whether the three-judge panel will appoint a
special master to draw one for them or whether the judges will draw a remedial map on their
In the 2024 election a Democratic House with such suburban district adjustments could flip to
Republican control. That would restore the legislative stalemate Governor Whitmer experienced
in her first term when Republicans controlled both the house and senate. With a Republican
house in 2025 legislative stalemate could be expected to continue for the governor through the
expiration of her gubernatorial term of office on January 1, 2027.
If the federal three-judge panel rules against the Independent Citizen Redistricting Commission
in Agee, that might encourage the filing of a third lawsuit asking for the reversal of Arizona
Legislature v Arizona Independent Redistricting Commission on the basis that it was wrongly
decided, that the election clause in Article I, Section 4, means what it says. Legislatures, not
Commissions, do redistricting.
Such a reversal would restore redistricting to the plenary authority of the Michigan legislature
and governor. Reversal of Arizona Legislature may even lead to the restoration of the 1982 Apol
standards in Michigan.
In 2018 Justice David Viviano’s 4-3 majority opinion in the lawsuit that placed the Voters Not
Politicians initiative on the ballot, stressed that the 1963 Michigan Constitution itself removed
the power of redistricting from the legislature and the governor and gave that redistricting
power to an eight-member Commission on Legislative Apportionment.
In 1982, the Michigan Supreme Court invalidated that Commission and designated Bernie Apol,
the retired Director of the Bureau of Elections to serve as its special master to draw district
boundaries for the state house and state senate for the 1982 election using criteria in Article IV
that the Court said remained valid. That criteria with a heavy emphasis on maintaining county
and political subdivision boundaries was referred to as the Apol standards in the news media.
The Apol standards were later codified into Michigan Election Law in 1996 and 1999 and were in
place in 2001 and 2011 when the legislature redistricted the state legislature and congressional
Let’s see what happens now.