MAJOR QUESTIONS IN MICHIGAN POLITICS SHOULD FINALLY GET ANSWERED BY YEAR’S END
QUESTION 1): WILL DANA NESSEL MOVE FORWARD ON EX-SPEAKER LEE CHATFIELD & DARK MONEY DISCLOSURE?
ANSWER 1): Attorney General Dana Nessel has promised reports by year’s end on her investigations into dark money abuses by former state House Speaker Lee Chatfield and former state Senate Majority lLeader Mike Shirkey.
These are two separate investigations.
Chatfield’s investigation began after a criminal sexual conduct complaint was filed by a former student, now his sister-in-law. This is a matter for a local prosecutor. But the complaint also raised issues related to Chatfield’s compliance with campaign finance, lobby, and ethics laws.
The AG report is likely to focus on Chatfield’s use of a 501 C4 social welfare organization, the Peninsula Fund, which he allegedly used to pay expenses for what some say was his insatiable appetite for travel, food, beverage, entertainment, and lodging.
Then there was his chief of staff, Rob Minard, and his wife Anne, also on Chatfield’s legislative staff, who, while on the state payroll, operated a political consulting and fund-raising firm.
Chatfield’s successor as speaker, Jason Wentworth, made use of the Chatfield soft money model that in reality dates back at least to the Rick Johnson speakership of 2001-2004. In those days, 501 C4s concentrated on issue ads, not as personal slush funds. Several of Johnson’s 501C4s still operate today, with a new name. Longtime Lansing lobbyists like Dawn Crandall and Shelly Stahl have been reported in the media serving as officers or board members to some of those funds.
The Detroit News recently reported that the home address in Grand Ledge of Wentworth’s Chief of Staff, Joe Perry, is also the address of EMPC Consulting. Joe Perry’s wife is recorded in state filings with the Department of Licensing and Regulation as the owner of EMPC Consulting. Two 501 C 4 organizations with ties to then-Speaker Wentworth reported on their 2022 IRS Form 990 annual reports having paid combined fees of $557,829 to EMPC Consulting.
In 2022 Michigan votes overwhelming adopted Proposal 1. That constitutional amendment modified state legislative term limits. The amendment also provided for annual financial disclosure by legislators and other state officers. The lLegislature was given till the end of the 2023 legislative session to enact a financial disclosure law or have the courts intervene. Attempts to have officials disclose contributors to any 501 C organization which that official might be connected to failed. Governor Whitmer signed that scaled-down disclosure law. Her affiliated 501 4 organization itself reported raising $12.9 million in 2022. The donors to Whitmer’s Road to Michigan’s Future remain undisclosed to the public.
The other Nessel investigation involves two 501 C4 social welfare organizations with ties to former Senate Majority Leader Mike Shirkey, Michigan Citizens for Fiscal Responsibility (MCFR) and Michigan! My Michigan! (MMM). The Ballenger Report
Shirkey used those two entities administered by Heather Lombardini, an outside fund-raising consultant over the years to Senate Republicans, to hide the true identities of 78 contributors who funneled $2.4 million to Unlock Michigan, a ballot question committee, that Shirkey used to fund a petition drive using the statutory initiative provisions in the Michigan Constitution to successfully repeal the 1945 Emergency Gubernatorial Powers Act that Governor Whitmer had invoked amid the 2020 covid-19 pandemic.
In response to a complaint, the Elections Bureau after 14 months of investigation found that there was reason to believe that MCFR and MMM violated the Michigan Campaign Finance Act and offered them both a conciliation agreement to settle the complaint. Both MCFR and MMM refused to sign the agreement and pay the fine the Bureau assessed.
On June 3, 2022, the Secretary of State made a criminal referral of MCFR and MMM to the Attorney General. 18 months have passed since that referral. That’s more than enough time for the AG’s office to go to court to obtain a subpoena to serve on MCFR and MMM to obtain from each an un-redacted copy of their 2020 IRS Form 990 or, in the alternative, copies of their bank deposits. This will disclose the names, addresses, and amounts of thirty-four contributors to MMM that ranged in size from $5,000 to $300,000 along with identity of the forty-four contributors to MCFR which ranged in size from $5,000 to $175,000.
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Question 2): WILL LAWSUITS CHALLENGING DONALD TRUMP’S ELIGIBILITY UNDER SECTION 3 OF THE 14TH AMENDMENT TO SERVE AS PRESIDENT BE DECIDED BY THE U.S. SUPREME COURT?
ANSWER 2): It all depends on how the Colorado Supreme Court rules on a pending appeal of the holding of a lower court that found Trump fomented an insurrection on January 6, 2021. The Colorado district court made that finding in Anderson v Griswold. Oral argument before the seven-member Colorado Supreme Court was held on December 7. Democratic governors appointed all seven of the Colorado justices.
Another Michigan court has held that the question of whether Donald Trump is ineligible to run for president is a “political question” not suited for the Courts to resolve, better left to the Congress or voters. Court of Appeals Judge James Robert Redford, serving as the trial judge on the Michigan Court of Claims, so ruled in LaBrant, et al v Benson. That lawsuit was appealed to the Michigan Court of Appeals, which last week found that it can’t bar Trump from the Michigan ballot, at least for now. All three judges on that panel were appointed by Republican governor Rick Snyder (Riordan, Cameron, and Letica). Litigants from the losing side at the Court of Appeals are likely to seek leave to appeal from the Michigan Supreme Court, which currently has four Democratic nominated justices and three Republican nominated justices.
Section 3 of the 14th Amendment provides:
“No person shall be a senator or representative in Congress or elector of President and Vice President or hold any office, civil or military, under the United States or any state, who, having previously taken an oath as a member of Congress, as an officer of the United States, or as a member of any state legislature or as an executive or judicial officer of any state, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same, or give aid or comfort to the enemies thereof.”
The Colorado district court judge in her opinion gave her interpretation of the text of Section 3. She said because the president is not enumerated specifically as is a senator, representative, or elector, she interprets Section 3 under the rules of construction and interpretation, “that which is not enumerated is excluded,” in Latin it is called the EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS RULE.
Because Section 3 of the 14th Amendment as interpreted by the Colorado district judge found Trump had engaged in an insurrection, as such, she says Trump cannot run for senator, a member of Congress, elector, state legislator, mayor, or dog catcher, but is still eligible to be president.
To put this in its historical context, let’s turn to Bob LaBrant, the retired Lansing attorney and campaign finance/election law expert. LaBrant opines: “Does anyone, other than this Colorado judge, think Congress intended, when they drafted Section 3 of the 14th Amendment following the Civil War, to write Section 3 in such a way as to allow Jefferson Davis, the former president of the Confederate States of America, if he so chose to run against Ulysses S. Grant for President of the United States in 1872 even though Davis violated his oath to support the Constitution he took as a United States Senator from Mississippi and later again as Secretary of War in President Buchanan’s cabinet before he engaged in insurrection against the United States?! Davis was specifically ineligible under the text of Section 3 of the 14th Amendment to run for senator, representative, mayor, or governor, but under her interpretation Jefferson Davis would not have been disqualified from being president.”
So, if the Colorado Supreme Court reverses that lower court interpretation and holds Trump constitutionally ineligible for the presidency, such a ruling, with almost 100% certainty, will be heard on appeal by the U.S. Supreme Court. If the Colorado Supreme Court sustains the lower court ruling, it is unlikely the U.S. Supreme Court would grant certiorari to hear an appeal of the Colorado case. The Colorado ruling may give other states cover, perhaps including Michigan.
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Question 3) WILL THE FEDERAL THREE-JUDGE PANEL FIND THAT THE CURRENT STATE LEGISLATIVE DISTRICTS, CREATED BY REAPPORTIONMENT, THAT START IN DETROIT AND EXTEND OUT INTO OAKLAND AND MACOMB COUNTY SUBURBS SO DILUTE BLACK VOTING POWER AS TO VIOLATE THE FEDERAL VOTING RIGHTS ACT?
Answer 3): Secretary of State Jocelyn Benson in a December 4 filing has asked the federal three judge panel (Circuit Court Judge Raymond Kethledge, Western District Court judges Paul Maloney and Janet Neff) to reach a quick decision as to the legality, under the federal voting rights act, of seven state House districts and six state Senate districts that were challenged in Agee v Benson.
A week-long trial held in Kalamazoo that began on November 1 has concluded. Post trial briefs by the parties have been submitted.
Secretary Benson told the panel if maps must be redrawn the process needs to be completed and the qualified voter file updated before the candidate filing deadline of April 23, 2024, for the August primary elections.
The issue before the Panel is whether the 13-member Michigan Independent Citizens Redistricting Commission (MICRC) created by a 2018 constitutional amendment went too far in lowering Black voter percentages in Detroit area districts. Commissioners were advised by their legal counsel that the percentage of the Black population under previous redistricting plans were excessively “packed.” They advised that the percentage of a district’s Black population could be lowered to between 35% to 55%. District maps compiled with that advice were adopted by the MICRC in December, 2021, and were in effect for the 2022 elections.
Plaintiffs said that advice was faulty as proven by election results in primary elections. The number of majority Black districts fell from 11 in 2022 to seven in the state House in 2023 and from two in 2022 to zero in the state Senate. Black representation in the 2023 state legislature dropped from what it had been before the 2022 election. This can be illustrated by the chair of the Black Legislative Caucus being defeated by a white candidate from an Oakland County suburb in the primary election.
Plaintiffs in the lawsuit have provided the panel with remedial maps and, in their post-trial filing, urged the panel, because of the time crunch, to appoint a special master, if necessary, but not remand the drawing of new district lines to the MICRC. There is a good possibility that may happen.
Will there be an effort to minimize media coverage of the three stories above? It’s likely, so look for announcements on the slowest news days remaining in 2023 — either Friday, Dec. 22, or Friday, Dec. 29.
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Leanne says
Several questions regarding redistricting review by federal courts:
(A) if a violation is found – will the Court:
(1) appoint a special master to re-draw the district boundaries?
(2) order the Redistricting Commission to re-draw legally conforming boundaries?
(3) re-draw the boundaries themselves?
(B) is an appeal to the U.S. Sixth Circuit Court of Appeals in Cincinnati inevitable no matter how the trial court panel decides the case – and how would such an appeal impact the ability to re-dray district lines before anticipated election dates in 2024?
(C) will the redrawing of offending district boundaries necessarily impact the lines of other districts that are not challenged as being violative of law – and how would this remedy be imposed?
(D) would the federal judicial panel appoint a U.S. Magistrate as a special master to redraw district lines?
In my opinion the broader question that is apparently not before the federal court panel is the composition of the panel and what can be done to cure the apparent fact that it has been improperly constituted in various ways.- e.g. having a person such as Bernie Sanders progressives such as Anthony Eid appointed as “neutral” with no effort to replace him despite this individual should never having been seated in the first place.
Black Michiganders should have screaming the loudest about the work of the Redistricting Commission – and indeed many have.
The formation and operation of the Redistricting Commission should a source of embarrassment to the Democratic Party insiders who pushed and financed the effort to create what had been purported to be an equitable improvement over the prior system of legislative reapportionment.
What it did succeed is creating legislative boundaries that destroyed GOP majorities in both chambers and caused the defeats of Senator Mike McDonald and senate candidate Pamela Hornberger. The cost was black representation in those chambers.
Tim Sullivan says
Spot on, Leanne. Unfortunately, the definition of “non-partisan” or “independent” is more than a wee bit amorphous.
And remember, the MiCRC were the folks who gave themselves a 40% wage hike before really starting their jobs. A special master (or masters) should be the Court’s response. We could see Sean Trende (you can read some of his work at RealClearPolitics) may be headed to Michigan to work.
Mark M Koroi says
The federal court opinion came down and it slammed the Redistricting Commission – ordering the redistricting of Senator Michael McDonald’s old district – which is now being held by Veronica Klinefelt – as well as many other Michigan Senate and House districts.
The Dems may now lose control of both chambers of the Michigan Legislature.
Kudos to the three-judge federal court panel of Paul Maloney, Janet Neff and Raymond Kethledge.
Tim Sullivan says
First of all, a very Merry Christmas and Happy 2024 to the entire TBR family!
Nice article, Bill, and informative. I will admit it has been more than a few decades since I took high school Latin, so thanks for the translation.
QUESTION 1: Well, given how the AG office has been run, a delay of eighteen months is not a real long time.
I suspect the reason is that if they go after the GOP politicians on this issue, the GOP will return the favor when they are in power. The apparent abuse of 501s has been a longstanding bipartisan tradition in Michigan politics. I suspect all the folks who voted for Proposal 1 last election expected the legislature to fix it. It seems the only thing they should have expected was disappointment. It’s the one thing the legislature is usually pretty good at delivering.
QUESTION 2: Trump survived the second impeachment which, for all intents and purposes, was over the January 6th protests/riot. An insurrection, by definition has to be organized, otherwise it’s a riot. If we are being honest, the forces behind January 6 would have trouble organizing a three-car funeral procession let alone leading ants to a picnic.
The example of Jefferson Davis is just a wee bit off. No one would have nominated him for anything. He was the President of rebellious states that waged an actual war against the United States, a war that resulted in hundreds of thousands of dead Americans as a result. January 6 was lots of things, but it was not that.
One thing I would note on the subject of insurrection and those involved in an actual insurrection, is that during the Spanish American War, William McKinley, the last American President who served in the Civil War (or as I prefer to refer to it as the War of Southern Intransigence), thought it a good idea to bring back into active US Army service former Confederate Generals Fitzhugh Lee (Robert Lee’s nephew), Joseph Wheeler, Thomas Rosser and Matthew Butler. Lee (wounded twice by Union troops) and Wheeler (wounded thrice by Union troops) would serve as Major Generals of U.S. Volunteers in the Spanish-American War and both would retire as Brigadier Generals, U.S. Army. Rosser, who refused to surrender at Appomattox Court House only to be captured later, served as a Brigadier General of Volunteers. Butler, who lost a foot at the Battle of Brandy Station during the War of Southern Intransigence, was a Major General of Volunteers. Both Butler and Rosser were mustered out after the war. As a personal note, I think McKinley should have also brought back Army of Northern Virginia Corps commander James Longstreet who served in numerous government positions including Ambassador to the Ottoman Empire. Given that history, is article 3 section of the 14th amendment might not be the strongest argument.
Given the unsuccessful impeachment over January 6th, efforts by the judiciary to keep Trump off the ballot on “insurrection”, whether in Colorado or Michigan (especially with the Democratic tilt of those states Supreme Courts), would require some sort of overruling or ignoring the outcome of the unsuccessful impeachment of Trump on that charge. Many will see this as a thoroughly political hit job.
I suspect that SCOTUS will not take Trump off the ballot and all these efforts will only succeed in making Trump even more popular. If the plan is to keep him out of the White House, I would suggest something other than what appears to be copying Troy Weaver’s attempts to restore the Detroit Pistons to their – formerly – winning ways. If you want Trump not in office, beat him at the polls.
QUESTION 3: I think the plaintiffs should prevail. The lines concerning majority-minority seats in the state legislature seem drawn to minimize the chances of electing non-white candidates. SCOTUS has been rather harsh on that lately, so I suspect the 6th Circuit panel will be equally harsh. And yes, it is a shame that TV news coverage here in the Detroit-area has been sparse. Once again I will offer my services to help serve as a special master to redraw the lines with as many readers of The Ballenger Report as the court will allow. If they want us in Lansing, set us up in the upper parking level of the Hannah Bldg., give us access to Rapid Copy (it was there in 2018 and I am assuming it still is), bring in some food and drink, and we can do a better job. If they prefer Detroit, Cadillac Place (the old GM Bldg.) has plenty of space, access to copy machines in the SOS and AG offices in the penthouse suites (though they could just wheel some in for us), and a very helpful staff when Marge Bustillo was the building manager when I worked there. If the St. Regis is still a hotel, it’s just across the street for the gang to stay in.
Once again, Merry Christmas to all!
Royal says
Merry Christmas, Tim! You have my vote as special master for the redistricting committee. My $5 beverage contribution is in the mail, but I hope you don’t mind that I will not be holding my breath on this one . . .
Kudos to you and Leanne for adding illuminating perspective on another intriguing TBR . . .
Tim Sullivan says
Thanks!
Have a Merry Christmas, Royal.
Royal says
Super TBR Bill,
Quick hits,
wrt Q#1: Hail Caesar! In this 3rd world politically charged environment, we seem to have taken the add-age, ‘To the victors go the spoils’, to a whole new level. I blame the Dems, but will deny I ever wrote this when my trial date comes up.
wrt Q#2: In the “normal” world I grew up in, these kinds of shenanigans (impeaching on hoax insurrections, keeping Trump from running as a Confederate war criminal, appealing these stupid positions to SCOTUS, tying up various courts’ time and resources on this frivolous baloney, etc), would have never have seen the light of day. But I guess only Caesar, er Joe Biden, gets to call shenanigans and baloney as blarney.
wrt Q#3: Seems an odd numbered committee seems automatically politically biased, prima facie’. Whatever happened to even numbered committees with veto power over each other? Are we so sure that consensus cannot be reached that we no longer try it any more? Sheesh. Are both sides entrenched so much they must either win or (politically) die? Shame on us all. Heaven for-fend.
Robert Nelson says
“Hoax insurrections?”
The writer has conflated Trump with Aaron Burr. When 140 police officers are wounded and six people are killed, there is no hoax, my man.
Mark M Koroi says
What a Christmas present from the three-judge federal panel coming down just now ordering redistricting of numerous Michaign House and Senate Districts!