Benson questions law making it harder for ballot drives

By David Eggert
Associated Press

LANSING (AP) - Democratic Secretary of State Jocelyn Benson on Tuesday called into question the constitutionality of a Republican-enacted law that makes it harder to put proposals on the Michigan ballot, asking the state's attorney general for an opinion on a major move in the recent lame-duck legislative session.

Benson made the request to Attorney General Dana Nessel, a fellow Democrat, who also signaled her concerns with the law. Nessel's opinion, while not the same as a legal ruling, would bind the Department of State unless it was reversed by a court.

The law, which Gov. Rick Snyder signed before leaving office, imposes a geographic requirement on groups trying to gather hundreds of thousands of voter signatures to qualify for the ballot. No more than 15 percent of signatures can come from any one of Michigan's 14 congressional districts, a restriction that could prevent ballot committees from solely targeting the most heavily populated areas.

"I am proud that, for more than a century, Michiganders have exercised core constitutional rights in the circulation of initiative, referendum and constitutional amendment petitions," Benson, who took office this month, said in a statement. "I am deeply concerned that the new restrictions enacted late last year in Public Act 608 of 2018 may potentially violate those constitutional rights by adding new burdens and restrictions on the process."

In a letter, she asked Nessel to determine the constitutionality of the geographic limit but also other provisions, including one that requires paid signature collectors to file an affidavit with the state. She said it could present "unique difficulties" for the organizers of referendums, who must file their signatures no more than three months after the close of a legislative session in which a challenged law is passed.

Benson said she needs to be able to provide appropriate guidance to potential ballot drives because the 2019-20 election cycle is already underway. Nessel welcomed Benson's request, saying the law "puts a limit on the people's voice and that is cause for great concern - something a rushed lame-duck Legislature failed to regard."

Republicans, who still control the Legislature while Democrat Gretchen Whitmer is governor, approved the business-backed law in December - a month after voters passed three Democratic-backed proposals to legalize marijuana for recreational use, curtail the gerrymandering of congressional and legislative districts, and expand voting options.

The sponsor, GOP Rep. James Lower of Cedar Lake, said Tuesday night that Nessel's quick criticism of the measure before releasing her opinion "smacks of a lack of due process that I actually find really frightening. ... She's already concluded what she is going to rule." The courts, he predicted, will ultimately uphold the law - which he said was designed to ensure voters have more input on ballot proposals before they go to a vote.

"People are funding these campaigns in Michigan with outside millionaires and billionaires and paying for signatures. I think voters have a right to know that," Lower said.

The law includes a new requirement that each petition indicate whether a circulator is paid or a volunteer. Benson wants to know if penalty provisions to invalidate signatures due to a circulator's noncompliance, including potential prosecution, raise constitutional concerns.

The law's passage also followed the GOP's unprecedented lame-duck legislative maneuver to weaken minimum wage and paid sick time laws that began as ballot initiatives.

To prevent the wage and sick leave measures from going to the electorate, after which they would have been much harder to change if voters had passed them, Republicans legislators preemptively approved them in September so that they could alter them after the election with simple majority votes in each chamber.

Organizers of those two drives - which will have a tougher time trying again in 2020 because of the new signature rules - may request that Nessel issue an opinion on the tactic as well. The legality of the strategy was endorsed by former Attorney General Bill Schuette, a Republican, but his opinion differed from one issued in 1964 by Attorney General Frank Kelley, a Democrat.

Courts ultimately could decide the fate of all three laws.

This is the second time Nessel has agreed to formally review a contentious new law since she started the job earlier this month. Also under review is the legality of a state deal to run an oil pipeline beneath a crucial section of the Great Lakes.

Published: Thu, Jan 24, 2019