May 1, 2021, is looking less like the start of true spring than the beginning of a chess match that may last for months, if not years.
By that date, several events will have occurred that may reshape Michigan election laws and the funding of politics going into the 2022 elections.
Within the next month, the Secretary of State’s Elections Bureau will likely complete its random sample of the nearly 500,000 signatures submitted by the group known as ‘Unlock Michigan.’ The arena will then shift to the four-person, bi-partisan Board of State Canvassers (BOSC) to declare whether the number of signatures is sufficient.
Meanwhile, another group called ‘Keep Michigan Safe’ is fighting the advancement of the initiative petitions that are aimed at repealing a law underpinning Gov. Gretchen Whitmer’s emergency powers. This group has laid out its challenge to the petition signatures and the way they were gathered as well as the rules and officials who would decide their fate.
Writing in The Detroit News, reporter Beth LeBlanc last week described the nearly 40-page complaint in which Keep Michigan Safe is asking the BOSC to delay consideration of the Unlock Michigan signatures unless one of the canvassers (BOSC Republican member Tony Daunt) recuses himself and until the rules governing the consideration of signatures have gone through a proper rule-making process.
LeBlanc notes that the group also has challenged more than 180 signatures as invalid. Keep Michigan Safe has also critiqued the summary and other elements of the petitions, and called for an independent investigation of the circulators who helped collect signatures.
If the BOSC fails to go through a proper rule-making process, Keep Michigan Safe said it plans to take the issue to court, the complaint says.
“Neither the Secretary of State nor the board has ever properly adopted the board’s practices for reviewing ballot question petitions and their signatures under the Administrative Procedures Act (APA), from the initial ‘face check’ to sampling to signature matching,” the complaint read.
‘Unlock Michigan’ has dismissed the complaint from the rival group, arguing that the plan is more of an effort to “Keep Michigan’s Courts Busy” with “frivolous” claims.
What is an initiative petition, anyway?
Initiative legislation, under the current, 1963 Michigan Constitution, requires the collection of signatures equal to at least 8% of the total vote for governor in the 2018 election. That percentage translates into 340,048 valid signatures.
The random sample procedure may face legal challenge for the failure of the Department of State to comply with the APA. A BOSC determination of signature sufficiency will start a ’40 session day’ clock running for the Michigan House of Representatives and Senate to enact the Unlock Michigan initiative. Unlock Michigan seeks to repeal the 1945 Gubernatorial Emergency Powers Act aka “The Riot Act.” Should the legislature NOT enact the initiative, however unlikely that may seem, the question would go on the November 8, 2022, ballot.
That may not be the end of it.
Keep Michigan Safe or other opponents of the Unlock Michigan Initiative could later this year launch their own petition drive to bring that repeal legislation to a referendum. Michigan’s Constitution requires only 5% of the total vote cast for governor in the 2018 election to invoke a referendum on a public act passed by the legislature. That percentage translates into 212,530 valid signatures. Once sufficiency of the referendum signatures is declared by the BOSC, such a 2021 public act repealing the 1945 gubernatorial emergency powers act would be suspended and remain unenforceable until voters decide the question on November 8, 2022, the same day as the Michigan’s next gubernatorial election.
This scenario is similar to what occurred in 1987 when initiated legislation sponsored by Right to Life of Michigan was enacted by the legislature. PA 59 of 1987 prohibited the public funding of welfare abortions except to save the life of the mother. Gov. James Blanchard had previously vetoed similar legislation. Michigan and the state of Washington do not allow their governors to veto initiated legislation. Supporters of Medicaid-funded abortions were successful in their petition drive to invoke a referendum, but when the question was placed on the November, 1988, general election ballot, voters supported the Right to Life-driven public act that had been approved by the legislature.
Conversely, in 2012, a petition-fueled referendum on an amended law approved the year before giving the governor enhanced powers to appoint emergency managers in local communities successfully overturned the law. No matter, Gov. Rick Snyder and the Republican-controlled legislature promptly amended the old law and enacted it over the vociferous objections of minority legislative Democrats. It was this new law that Snyder used to appoint an emergency manager in the City of Detroit and, later, in Flint, where it backfired in spectacular fashion with the “Flint Water Crisis.”
Flash forward to the present: The Michigan Supreme Court, with a new justice elected in 2020 who gave Democrats control of the panel, may find a case to reverse the controversial 4-3 decision by the high bench last year that declared the 1945 Riot Act unconstitutional.
While all this is going on, Michigan Republicans are planning still another petition drive later this year. This initiative (Secure Michigan Vote) seeks to amend Michigan’s election laws. The GOP’s initiative would incorporate in its text provisions taken from the 39 bills recently introduced in the Michigan Legislature by Republican lawmakers. These Michigan bills parallel similar legislation by GOP-controlled state legislatures in Georgia, Texas, Florida, Iowa, and Arizona aimed at re-writing portions of their state election laws. Doing this by an initiative petition, like that of Unlock Michigan, would do an ‘end run’ around a promised Whitmer veto.
Interestingly, just last week the Secretary of State’s Election Bureau dismissed two campaign finance complaints filed in 2020 by Robert LaBrant, former Michigan Chamber of Commerce legal counsel, against Michigan Citizens for Fiscal Responsibility (MCFR) and Unlock Michigan. LaBrant’s complaints argued that the MCFR met the definition of “committee” and should be required to register itself as a ballot question committee and publicly disclose the true identity of its contributors.
MCFR has made 12 separate contributions to Unlock Michigan since June 9, 2020, totaling $1,810,000. Another “dark money” 501 C 4 group called ‘Michigan, My Michigan’ (MMM) accounted for an additional five more contributions to Unlock Michigan totaling $550,000. Together, MCFR and MMM contributed a total of $2,360,000, or 84% of all the funds raised by Unlock Michigan.
MCFR and MMM were the agents used by state Senate Majority Leader Mike Shirkey (R-Clarklake) to keep secret from the public, media, and the Elections Bureau the names of corporations and associations who hid their contributions to Unlock Michigan’s petition drive by funneling their contributions through these 501 C (4)s.
Secretary of State Jocelyn Benson may complain loudly about Michigan Republicans using an initiative petition drive to enact Georgia-style election law changes, but her dismissal of the LaBrant complaints means that the Unlock Michigan model of using dark money funneled through a network of 501 C (4)s will now be the norm in ballot question petition drives, including the upcoming Secure Michigan Vote proposal.
Needless to say, LaBrant wasn’t happy about Benson’s dismissal of his complaints. “History will remember the dismissal of these complaints. That’s not something you would expect from someone who has championed ending dark money,” he says.
Expect to see Michigan Republicans use the same network of 501 C (4)s that funded Unlock Michigan and perhaps even make the claim that state, district, and county Republican Party administrative accounts, which can currently accept undisclosed corporate contributions, are not required, any more than 501 C (4) organizations, to register themselves as ballot question committees and disclose the names of their contributors and the amounts each has contributed.