(Posted May 31) It’s apparent Michigan Democrats will continue to control the state’s four major education boards elected on a statewide basis indefinitely — unless Republicans change the system while they have a chance.
How likely is that to happen? Not very.
Few realize that the Legislature and governor have the power under the Constitution to define the mechanism “as prescribed by law” or “as provided by law” by which members of each of the four education boards are elected.
Only members of the state Board of Education (SBE) must be nominated by (political) party convention, according to Michigan’s Constitution, which also stipulates they must be elected AT LARGE and are entitled to eight-year terms. But WHEN those members must face the electorate is left up to the Legislature and governor to determine. For example, by statute four seats could be filled in every gubernatorial election year, rather than the current system whereby two seats open up every two years, regardless of what kind of election it is. The Legislature and/or governor might make other changes as well.
Members of the state’s three major research universities — the U-M Board of Regents, MSU Board of Trustees, and the Wayne State University Board of Governors — do NOT have to be nominated by party convention. They could be nominated on a non-partisan basis, and in a primary. They must serve eight-year terms, yes, but they, too, could be elected by districts, if the legislature and governor so determine.
Yet no Legislature or governor in the past half-century has undertaken to change this arrangement. Democrats must be happy about this — taking advantage of straight-ticket voting, particularly in presidential years, they have dominated elections to the state education boards since 1964. Despite the fact that much of that time there have been multiple Republicans elected to statewide office (right now is a good example — the GOP controls EVERYTHING in state government except the boards), Democrats have controlled all four of these panels the vast majority of the time, as they do today.
Here’s how overwhelming the Democrats’ superiority in ed board races has been: The Republicans haven’t controlled the MSU Board since 2006, the state Board of Education since 1996, the University of Michigan board since 1970, and they have NEVER had a majority on the WSU board (the best they’ve been able to muster was a 4-4 tie in 1995-96).
The Michigan GOP has a better chance to change that with the abolition of straight-ticket voting (now being challenged in federal court). But they won’t be able to take full advantage of this altered law if they don’t redefine the way members of the boards are elected, which they apparently have no interest or stomach in doing.
Everything written above is also true for the state Supreme Court, and there was a time when, if they had the chance, Michigan Republicans might have taken a whack at trying to change the method of electing justices to the high bench, such as in 1967-68; 1995-96; 1999-2006; or anytime since 2010.
But now the GOP controls the Supreme Court, 5-2, so why change anything?
Here’s the way things stand now: Three month from now, on August 27-28, the two major parties will hold their state nominating conventions. Each party will nominate two candidates apiece for the SBE, MSU, U-M and WSU. Democrats control three of the panels by a 6-2 margin; they’ve got a 5-3 majority on the MSU board.
2016 will mark the first time in 125 years that Michigan voters will not be able to vote a straight party ticket by filling in one bubble on the ballot, or pulling one lever. There’s one possible caveat to that — former Michigan Democratic Party Chairman Mark Brewer (1995-2013), now an attorney with the Southfield law firm of Goodman Acker, PC, has filed suit (on May 24) to strike down PA 268 of 2015, the law repealing straight ticket voting. Brewer in his pleadings claims that PA 268 violates the equal protection clause of the 14th Amendment to the U.S. Constitution, the federal Voting Rights Act, and the Americans with Disabilities Act. The case was assigned to Gershwin Drain, a recent Barack Obama appointee in the Eastern District. Before passage of PA 268, Michigan was one of only 10 states that still had straight ticket voting.
Under straight ticket voting, voters could cast a straight party ballot beginning with president or governor at the top of the ticket all the way down through all partisan offices, including the four state education boards. Democratic presidential nominees have won six straight elections in Michigan, beginning in 1992. As a result, they’ve won more than 90% of the ed board seats on the ballot in presidential years during that time. Republicans have done better in gubernatorial (non-presidential) years — GOP candidates like Romney, Milliken, Engler and Snyder have won 10 of 14 goober elections since adoption of the 1963 constitution — but haven’t been able to make up for the Democrats’ presidential year success.
Four splinter parties have qualified for this year’s general election ballot as well — the Libertarians, U.S. Taxpayers, Green and Natural Law parties.
On August 27-28, the state party conventions will also nominate candidates for the state Supreme Court and for presidential elector — the people who will actually cast ballots in the Electoral College next December for the winning presidential candidate in Michigan.
Lansing attorney Bob LaBrant, a student of Michigan’s judicial history, points out that, in early in statehood, the Michigan Supreme Court was appointed, not elected. That changed with the adoption of the 1850 constitution, which mandated partisan judicial elections. That lasted until 1939, when voters adopted an amendment to the 1908 constitution that kept justices (and judges) elected, but made them non-partisan. Strangely, however, the practice of having political parties nominate candidates to run for the Supreme Court on a non-partisan ballot began.
At the time of the 1961-62 state Constitutional Convention, the Michigan Supreme Court consisted of eight justices who were elected, on a staggered basis, in biennial spring elections for eight-year terms on a non-partisan basis.
Much of the debate at Con-Con revolved around whether Supreme Court justices should be elected from districts, or elected on a statewide ballot, and whether high court jurists should continue to be nominated by political party conventions or by non-partisan primaries like other judicial candidates such as the state Court of Appeals and circuit, probate and district court judges.
Delegates struck a compromise. The size of the high bench was reduced from eight to seven justices. Incumbent justices were given the power to file an affidavit of candidacy (the so-called ‘Black Amendment’) and continue to have their names placed on the non-partisan ballot along with an incumbency designation. The dispute over elections (district or statewide) and nominations (party convention or non-partisan primary) was not resolved, so the delegates punted the issue to a future Legislature to decide (but no subsequent Legislature has ever touched this conundrum).
In other words, any Legislature in the nearly six decades since Con-Con could have changed “statewide” to “by district” and/or “party convention” to “open non-partisan primary” —-but it’s never happened.
This year happens to be the one in which, ordinarily, only one justice seat is up for election (it happens every eight years). Incumbent Republican Justice David Viviano is the justice on the ballot this year, running for a full eight-year term. Viviano might be considered imperiled because most incumbent defeats (and they rarely happen) have occurred when only one seat is on the ballot.
However, this year Viviano will have unexpected company. In 2015, another justice, Mary Beth Kelly, unexpectedly resigned her seat to return to private practice. Governor Rick Snyder then replaced her with conservative U-M law professor Joan Larsen, who must now run for the unexpired two-year portion of Kelly’s term. So, instead of having only one seat up for grabs there will again be two, but they will be “slotted” separately, meaning Viviano and Larsen will not be running together seeking the top two positions in a single race. Instead, each must win his (or her) separate contest.
If Larsen is successful at the ballot box in November, she must run again in 2018 if she wants a full eight-year term. She would then be running with the incumbent chief justice, Bob Young, who will also be seeking another eight-year term (he’s already won two plus a portion of another).
What about the Democrats? Mark Plawecki, chief judge of the 20th District Court in Dearborn Heights and husband of state Rep. Julie Plawecki (D-Dearborn Hghts), has expressed interest in the Dems’ nomination to run for the two-year term against Larsen (the judge has also penned a great baseball book entitled “How Could You Trade Billy Pierce?”)
Who will run against Viviano? It looks like maybe Wayne County Circuit Court Judge Deborah Thomas, who ran against Viviano in 2014 but lost, may run again. The four splinter parties mentioned above can also nominate candidates for the Supreme Court and have their names appear on the non-partisan ballot in either or both races. All Supreme Court candidates, regardless of what political party nominated them, will have no indicia on the ballot to identify their partisan affiliation.
Finally, the state conventions will nominate their party’s 16 presidential electors (one elector for each of Michigan’s 14 U.S. House districts + two electors for the state’s two U.S. Senators) if their presidential nominee wins the popular vote in Michigan. Those presidential electors, certified by the Board of State Canvassers, will meet at the state capitol next Dec. 19 in the state Senate chambers to record their votes for President and Vice president on certificates. Those parchments will be sent to the President of the U.S. Senate and the Archivist of the United States where, on Jan. 6 of next year, the Congress will meet in joint session to count the electoral votes and declare who has been elected and will be inaugurated as President and Vice President on Jan. 20, 2017.
Marty Ackley says
Bill, you left out two important words from the Michigan Constitution regarding the election of State Board of Education members — “at-large.”
The Constitution reads: “The state board of education shall consist of eight members who shall be nominated by party convention and elected AT LARGE for terms of eight years as prescribed by law.”
That means they are elected statewide — “rather than from a subdivision of the larger unit.” (Black’s Law Dictionary – Tenth Edition).
So, the Michigan Legislature cannot change that on its own. It would have to be through an amendment to the state Constitution.
Good point! — I’ll correct that …
Greg McNeilly says
Not to mention, that the Michigan Constitution lacks U.S. Constitutional authority to prescribe to political parties the method or means by which they must select their nominees.
Settled U.S. Constitutional law gives state parties an inviolate right to self-determine their forms of their freedom to associate.
John K. Harrison says
Hey, Bill, Billie told me you have a blog (she learned about it at lunch today) and I checked in. I’m ever so busy nowadays supporting Trump, which demonstrates what Billie has to put up with; however, I’m happy you are back in the game. You left your former endeavor in the poorest of hands. Keep up the good work, and we’ll check in from time to time.