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All-Out Battle On Election Law Is At Hand

By Zachary Gorchow
Executive Editor and Publisher
Posted: April 21, 2021 3:36 PM

A vicious fight over election law in Michigan is underway that will have echoes to the toxic post-election environment following the 2020 elections in this state.

Republican lawmakers have introduced a large number of bills, particularly in the Senate, that would put new regulations in place regarding voting and the counting of votes. There are a number of noncontroversial bills in the package, but some of them are clearly a direct response to the anger former President Donald Trump stoked about absentee ballots and the unsupported claims from some Republicans about how votes were tabulated in heavily Democratic Wayne County.

Two factors produced an enormous increase in the number of ballots cast via the absentee process compared to in-person voting at Election Day precincts: Proposal 3 of 2018 removed the limits on who could cast an absentee ballot and the COVID-19 pandemic prompted many voters to vote absentee instead of crowding into a school, church or other venue with other voters.

Democrats tended to vote absentee. Republicans tended to vote in-person. Under Michigan's counting procedures, generally in-person votes are tabulated first, followed by the absentees, which take longer. That meant the count showed more votes for Mr. Trump for about the first 20 hours after the polls closed until Wednesday evening when absentee ballots were tallied and President Joe Biden went ahead to stay.

Some of the Republican bills are clearly designed to make the absentee process, depending on who's doing the talking, more difficult for voters or more secure.

For starters, voters would have to present a copy of photo identification when applying for an absentee ballot or be routed into the provisional ballot process. Absentee ballot drop boxes, which became popular last year, would see several new regulations and limits. The secretary of state would be barred from mass-mailing absentee ballot applications. And clerks could not provide an envelope with prepaid postage for voters to return their ballot. There are many other measures.

If and when the Republican majorities in the Legislature pass the bills, Democratic Governor Gretchen Whitmer will likely veto them.

That's when it gets interesting.

Michigan's Constitution allows voters to initiate a law through a petition. If signatures from registered voters at least equal to 8 percent of the total vote for governor in 2018 are collected, the initiative petition goes before the Legislature, which can enact the law through a majority vote with no opportunity for the governor to veto it.

Michigan Republican Party Chair Ron Weiser has said the state party is prepared to go this route. He also has said it would be a more narrowly, yet to be determined, set of proposals than what is now in the Legislature.

The 340,047 valid signatures from registered voters is a relatively low bar for a well-funded, well-organized petition drive as one would expect the Michigan Republican Party to put together. If Republicans can move these bills quickly to the governor's desk, let's say sometime in the next month, a petition drive would be organized in time to collect signatures during the summer months. The COVID-19 pandemic has made signature collection more challenging but both Unlock Michigan and Fair and Equal Michigan showed it can be done.

That should put a petition, presuming enough signatures are gathered, on course for enactment sometime in 2022.

Democrats will have a few options on how to respond.

They could sue and hope the courts would find the new law runs afoul of the language in Article II, Section 4 of the Michigan Constitution added in Proposal 3 of 2018 providing all voters in Michigan "the right" to vote in all elections. Republicans could counter that subsection 2 of that section makes clear the Legislature has the right to "enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting."

But such a case would mark a big test for the new Democratic majority on the Michigan Supreme Court.

Democrats could mount a counter petition drive. Realistically, that would have to start this year. There might not be enough time to wait for enactment of the Republican initiative to start a petition drive. That would likely mean a constitutional amendment, which would trump a voter-initiated statute by the GOP, that preempts the kind of changes Republicans have proposed.

There's a couple problems with that approach, however. First, it would require voter approval and there's no guarantee of that. Second, even if approved, it would come too late to prevent the Republican law from affecting the 2022 elections.

There's the possibility of putting the Republican law up for referendum. If Democrats gathered enough signatures, it would suspend the law and prevent it from taking effect until voters decided the matter in November 2022.

But Republicans will presumably put an appropriation into their initiative petition to inoculate it from a referendum. Under a 2001 Michigan Supreme Court ruling, any statute containing an appropriation, no matter how small, cannot be subject to referendum. Maybe Democrats would like to get the chance to put the appropriation topic before the Democratic majority on the court to revisit one of the most controversial, most criticized Supreme Court rulings in the past quarter-century. By all accounts, the intent of the language was to prevent anti-government zealots from putting the entire state budget up for referendum and shutting down the government, not to allow the Legislature to drop $10,000 into a bill to prevent a referendum.

One also has to wonder at what point Democrats might consider a constitutional amendment to eliminate legislative enactment of voter-led initiative petitions and require all such petitions to instead go to the ballot for voters to decide. Republicans have adroitly used this mechanism several times in recent years. Democrats have not had control of both houses of the Legislature and the ability to use it since 1983. Such a change wouldn't affect this issue, however.

Republicans have the advantage on this issue right now thanks to the 1961-62 Constitutional Convention allowing for legislatively enacted petition drives. The worry among Democrats is palpable, and their options for countering the GOP are challenging.

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