After Michigan voters used the ballot initiative process to enact several measures to which the state legislature was opposed, legislators enacted a statute in 2018 making it more difficult for their constituents to engage in direct democracy. Recently, in League of Women Voters of Michigan v. Secretary of State, the Michigan Court of Appeals held that several of the law’s most restrictive provisions violated the state and federal constitutions. While the court based its decision primarily on textual and historical grounds, the holding also protected the initiative’s place as a democratic safety valve and guarantor of responsive government.
Michigan’s state constitution grants the people the right to amend the constitution or enact legislation via ballot initiative. The relevant provisions give formulas for the number of signatures that proposals must collect in order to gain ballot access. In 2018, voters used this mechanism to pass three measures favored by Democrats, including a constitutional amendment creating an independent redistricting commission. Following the election, the GOP-controlled legislature passed a statute imposing new restrictions on the initiative process. In particular, the new law required that no more than 15% of the signatures for any initiative come from any one congressional district, with signatures in excess of 15% not being counted. In addition, the statute imposed new requirements on paid signature gatherers, who would now be obligated to “file a signed affidavit with the secretary of state” and mark a checkbox on signature forms disclosing their paid status. Failure to comply with these conditions would invalidate any signatures collected and potentially result in criminal penalties.
The statute quickly faced legal challenges. In May of 2019, Democratic Attorney General Dana Nessel issued a formal advisory opinion that found several provisions to violate the state and federal constitutions. Shortly thereafter, a group of individuals and civic groups filed a lawsuit in state court challenging the statute’s constitutionality. Both houses of the state legislature also sued to defend the law. The trial court consolidated the two cases and granted partial summary judgment to each side. Judge Stephens held that the 15% signature and checkbox requirements were unconstitutional under the state and federal constitutions, respectively. She also concluded that the legislature lacked standing to sue. However, the court upheld the affidavit requirement and the provision invalidating signatures collected without complying with the statute. Both sides appealed.
The Court of Appeals affirmed in part and reversed in part. Writing for herself and Judge Boonstra, Judge Servitto first agreed with the trial court that the legislature lacked standing, as it had no special interest in the law’s enforcement. The court also agreed that the 15% signature requirement was unconstitutional. Judge Servitto observed that “[c]onstitutional initiative and referendum provisions . . . should be liberally construed to effectuate their purposes” and that the constitutional provisions governing initiatives are “self-executing,” and therefore beyond the power of the legislature “to impose additional obligations.” The court also noted that the state’s constitutional convention had considered and rejected a similar geographic requirement. The legislature pointed to constitutional provisions granting the legislature the power to implement the initiative process and to govern the “time, place and manner of . . . elections,” but the court concluded that the statute overstepped those powers. By capping the number of signatories from a given district, the provision took power away from the people and effectively required a statewide “pre-vote of agreement” on a given initiative, “plac[ing] the cart before the horse and unduly burden[ing] the initiative and petition process.”
The court next turned to the provisions governing paid signature gatherers. Examining Supreme Court precedent regarding the First Amendment, the court determined that “exacting scrutiny” applied, requiring “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Judge Servitto found that the legislature had asserted only “vague[]” interests, insufficient to justify either the affidavit or checkbox requirements. The court noted in particular that the affidavit provision would place different burdens on paid signature gatherers and on the organizations that employ them, and that such differential treatment was not justified by the state’s interests in transparency or “an orderly petition process.”
Judge Boonstra concurred in part and dissented in part. He would have found that the legislature had standing, as it possessed a “substantial interest that would be detrimentally affected in a manner different from the citizenry at large.” He concurred in the majority’s conclusions regarding the affidavit and 15% signature requirements, but thought that the checkbox requirement was constitutional, as it applied “even-handedly[] to both paid and volunteer circulators,” imposed only a small burden, and served a clear interest in “deterring election fraud.”
The panel was unanimous—and correct—in invalidating the 15% signature requirement. In doing so, it relied primarily on strong arguments based on the text and history of Michigan’s constitution. While those arguments were sufficient to decide the case, the purposes of direct-democracy provisions also strongly support the court’s holding. Had the court allowed the legislature to respond to voters’ passage of disfavored measures by restricting access to ballot initiatives, key benefits of direct democracy—including providing a majoritarian safety valve and encouraging government responsiveness—would have been undermined.
While direct democracy is not without its detractors, Michigan’s constitution commits the state to the initiative process. Among the central benefits of that process is the opportunity for voters to bypass a recalcitrant legislature and enact reforms that the majority perceives as beneficial. In 2018, Michiganders engaged in the platonic ideal of this sort of activism, passing an initiative meant to curtail gerrymandering, a democratically deleterious practice in which the legislature has every incentive to engage. By enacting an initiative-restricting statute essentially in direct retaliation for the passage of that ballot measure, the legislature both disregarded the constitutional provisions’ purpose and threatened to undermine their viability moving forward—as the initiative process becomes more difficult, it offers less of a safety valve for reform and less of a constraint on legislators. Legislators’ proffered justification for seeking to ensure statewide involvement, meanwhile, is at best irrelevant to the purposes of initiatives: direct democracy aims to provide an outlet for the majority of the people, not a majority of the state’s geographic area.
The Court of Appeals likely will not have the final word on the subject, as the legislature has already begun the appeals process. While the textual and historical arguments for invalidating the 15% signature requirement ought to satisfy the state’s supreme court, the high court’s justices would do well to reflect also on the purposes of Michigan’s commitment to the initiative process, and the harm that would be done to those purposes were the requirement to stand.