Petitioners for Right to Life and Voters Not Politicians? They could be toast. What about those mercenaries who collect signatures for pay? Fuggedabout it!
Ballot proposals may be about to proliferate beyond anyone’s wildest predictions.
Michigan politics is on the threshold of a populist transformation that both progressives and conservatives had not foreseen before Governor Gretchen Whitmer’s March 10 Executive Order (EO) declared a state of emergency, requiring Michigan citizens to practice social distancing and restricting in-person contact.
Other Whitmer Executive Orders as well as reduced petition signature requirements, extended filing deadlines, emergency rules, and online electronic gathering of John Hancocks for ballot proposals as well as candidates could turn Michigan elections into something never seen before, not only this year but forever.
For example, a subsequent Whitmer EO (2020-41) encourages the use of electronic signatures and remote notarization, witnessing and visitation during the COVID-19 pandemic. That EO is set to expire on May 6, but a ruling by federal judge Terrence G. Berg on Monday demands that the Secretary of State’s elections division produce by Thursday a plan on how to submit and collect petition signatures electronically, possibly on a three-minute website. In fact, the SoS quickly complied with Berg’s order, but will he accept it?
Politically, Whitmer’s “Stay Safe/Stay Home” EO last month immediately slammed the brakes on petition circulation efforts by candidates for the U.S. Senate, U.S. House and non-incumbent judicial offices who were rushing to meet the traditional April 21 filing deadline set by state law. Yes, the law currently allows incumbent judges to file by March 26 an affidavit to secure ballot placement (no filing fee or petition signatures required). State House of Representatives candidates had the option to gain ballot placement simply by paying a $100 filing fee. But everybody else, including many candidates for local offices, were severely inhibited by Whitmer’s order.
But then litigation was filed in federal court by Eric Esshaki, a Republican candidate in the 11th Congressional district, a seat located in parts of Oakland and Wayne Counties held by Democratic freshman U.S. Rep. Haley Stevens. Esshaki asked Berg to extend the filing deadline and to either reduce the minimum signature requirement or replace it with a filing fee. Whitmer had refused to extend the petition deadline, and Attorney General Dana Nessel defended the statutory deadline in federal court before Berg squashed them with his ruling. The state is appealing Berg’s verdict to the U.S. 6th Circuit Court of Appeals, so the battle isn’t over yet even though victory by Esshaki & Co. in the long-term war may be inevitable.
Berg, an appointee of former President Barack Obama, ordered in Esshaki v Whitmer that the signature requirement be reduced 50%. He also extended the filing deadline to 5 pm on May 8. Berg also ordered that Jonathan Brater, appointed Director of Elections this year by Secretary of State Joselyn Benson, must develop rules within the next 72 hours (by April 23) to collect and submit petition signatures electronically. Those rules could significantly transform Michigan politics this election year because, while Judge Berg’s holding applies only to candidates who must collect signatures for ballot access and had a candidate committee established with the FEC or under the Michigan Campaign Finance Act as of March 10 (the date of Governor Whitmer’s original” emergency” declaration), the underlying First Amendment challenge similarly impacts ballot question committees. Brater’s rules, posted on the SoS website in response to Berg’s ruling, may be subject to legal challenges, lasting for months, by one side or the other — so stay tuned.
The ballot question committee named “Fair and Equal Michigan,” which seeks to expand lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights under the Elliot-Larsen Civil Rights Act, may be the prime example of an activist group likely to file a First Amendment lawsuit in federal court to extend the May 27 filing deadline for statutory initiatives. This group could also be expected to ask the court to rule that rules to collect and submit petition signatures electronically should apply not just to candidates but ballot proposals as well. The Michigan Constitution sets a signature requirement of 8% of the total vote cast for governor in the last election (340,047 valid signatures).
“Fair and Equal Michigan” currently has an on-line petition drive underway, likely in anticipation of a federal court ruling. It takes about three minutes for a person to complete. The website (www. fairandequalmichigan.com) is based on collecting just one person’s electronic signature. That one petition signer also serves as the petition’s circulator providing a second electronic signature. The website collects the signer’s/circulator’s name, address, city or township, zip code, county, driver’s license number or state identification card number. The site has a reproduction of the petition, its headings and warning statements along with the text of the proposal. The name, address, county, city or township of the signer is added electronically to the petition. The two electronic signatures generated for the signer and circulator earlier are then added to the petition form by a click of the mouse. The site also requests the signer’s Email address and mobile telephone number. In addition, at the end of the site visit, the signer/circulator is directed to a page to make an on-line contribution to the effort.
It may not be a stretch to posit that if the LGBTQ petition drive succeeds, it may very well make the Right-to-Life and Voters Not Politicians model that assembles an army of committed volunteers obsolete. The petition management industry based on hiring mercenary circulators paid by the signature may also become extinct.
Petition drives to amend the Michigan Constitution currently have a July 6 deadline to submit valid signatures equal to 10% of the vote cast for governor in the last election (425,059). Litigation may be filed by a ballot question committee to have the same rules that are applying to candidates and statutory initiatives this year also apply to a constitutional amendment initiative. Based on Judge Berg’s precedent, some federal court may well be sympathetic to such relief.
Bob LaBrant, a longtime election analyst and expert on judicial politics, observes that activists on the political right, committed to the recall of Governor Whitmer, might also find a federal judge sympathetic to such relief. A statewide recall campaign is required to collect valid recall petition signatures equal to 25% of the total vote cast for governor in the last election (1,062,648). At first blush, that may appear like a seemingly insurmountable total. All those signatures must be collected within a 60-day time period under the 2012 amendments to the Michigan Recall Law. Impossible? What if the recall is mentioned nightly on Fox News and each afternoon on political talk radio and periodic tweets from Donald Trump? Look out!