The Michigan GOP has held the state’s legislature since 2010 because the party drew one of the nation’s most gerrymandered legislative maps. Republicans used that power to punish the poor with Medicaid work requirements, create “rape insurance,” and cut corporate taxes while raising them on the poor and elderly. But after eight years of unified Republican control of state government in Michigan, Democrat Gretchen Whitmer will break that stranglehold when she enters the governor’s mansion in January. The party isn’t loosening its grip on power so easily, though, instead offering one final and audacious attempt to undermine the will of the voters before Whitmer takes office.
The Michigan Republican Party is using its legislative majority in the lame duck session to gut popular citizen-initiated laws that would mandate paid sick leave and increase the state’s $9.25 hourly minimum wage to $12 per hour for all workers, including tipped employees, by 2022.
The laws were set to go into effect in March, but by a 26–12 party-line vote, the GOP-controlled Senate on Wednesday approved several amendments that would significantly undermine the measures. This comes after several almost comically brassy legislative maneuvers to attempt to preempt ballot initiatives that were expected to pass in overwhelming fashion. If they succeed, state Republicans will have successfully overturned the will of the voters in a way rarely seen in this country—at least outside of Michigan.
If the House passes the Senate-approved changes next week, then workers won’t see a raise to $12 per hour until 2030, and tipped workers, who now earn $3.52 per hour, will have their wages capped at $4 per hour. Employers will be expected to cover the difference if workers don’t receive enough tips to make minimum wage, but it’s common knowledge that many do not.
Wednesday’s legislative vote also included significant changes that would dismantle the sick leave initiative. As it now stands, the new paid sick time law would require employers to provide nine days of sick time annually, and one additional hour of medical leave accrual for every 30 hours worked. The GOP-proposed changes cut that to four sick days and one hour of additional medical leave for every 40 hours worked.
The Republican effort to gut the laws comes through a legally questionable maneuver never before tested by a party in power. That’s likely because those who drafted the state’s 1963 constitution couldn’t imagine that lawmakers would so brazenly attempt to derail popular initiatives.
Earlier this year, two citizen-led groups each collected nearly 400,000 signatures to put the proposals on the November ballot. Michigan law gives the legislature 40 days to take initiatives and make them state law. The rule exists to give lawmakers the power to avoid having to place popular measures on the ballot, thus saving time and resources.
But Michigan’s GOP is clearly using the rule for a more nefarious purpose. Sensing that the measures were likely to pass, the Republican-controlled legislature in September approved the proposals and made them law. However, it ensured the laws wouldn’t go into effect until March, allowing them to be amended in the lame duck sessions. Republican leadership even publicly stated when it passed the measures to get them off of the ballot that it would make the laws “more acceptable to the business community.”
The plan is similar to the Michigan GOP’s past legislative stunts and viewed by some as a final shriek from an often undemocratic Republican-controlled government that, over eight years, brought us the Flint water crisis; stripped local Democratic-run governments of their power to install Republican emergency financial managers; and used the 2012 lame duck period to turn Michigan into a right-to-work state and pass a repeal-proof version of an emergency financial law that voters had attempted to repeal just months before.
The GOP carried much of this out after and despite repeatedly losing the popular vote in the state. In 2014, Dems in the state House of Representatives got more votes, but the GOP held a 63–47 majority thanks to an egregious partisan gerrymander. In 2016, Republican House candidates got just 3,000 more votes, but the party still held a 63–47 majority. And in 2018, Dems won the House and Senate popular vote by around 6 percentage points each, but Republicans will still control both chambers.
By gutting these popular citizen-led initiatives, Republicans are disenfranchising voters twice over—once by gerrymandering the districts and once by derailing the popular ballot measures. It’s worth noting that voters in November approved by a wide margin a proposal for an independent redistricting commission that could put an end to Republican gerrymandering, but it won’t be up and running until the next round of redistricting after the 2020 census. And there’s little the legislature’s Democratic minority can do to respond. In the meantime, 60,000 people in Wayne County, the most populous county in the state, are stuck making less than $10 per hour and 20 percent of workers are making less than $12 per hour.
Still, Republicans might ultimately not be able to stymie these popular measures. Because the maneuvers have been so nakedly in violation of the state constitution, it’s possible that any changes to the law might be reversed by the courts. Mark Brewer, an attorney and former head of the Michigan Democratic Party, told Slate that the group that organized the minimum wage ballot proposal, One Fair Wage, will sue if Republicans approve the changes. (Brewer is also representing MI Time To Care, the group behind the paid sick time law. That group hasn’t yet committed to a lawsuit.)
Brewer points to a 1964 legal opinion written by then–Michigan Attorney General Frank Kelley that specifically addresses a situation like this one. The rule that gives the legislature the ability to make a ballot initiative law—for which the technical term is “adopted initiative law”—was included in the 1963 Michigan Constitution. In response to a legislator’s question in 1964 about the new constitution, Kelley wrote that the legislature could not amend an adopted initiative law in the same legislative session.
Brewer says that lines up with what’s written in the constitution, and he believes the case is cut and dry: “No legislature has dared to try to do this for the last 60 years because the constitution is so clear.”
Rep. Yousef Rabhi summed up many Democrats’ feelings on the matter: “The initiatives are supposed to give citizens a voice in the process of government. If the legislature can do this every time, then what’s the point of citizen-initiated legislation? It flies in the face of the democratic process outlined in the constitution.”
Republican Senate and House leadership didn’t return requests for comment. Should these leaders follow through with their plans, the Michigan Supreme Court will likely decide next year whether the legislature crossed a legal line and violated the constitution, not just in spirit but in letter.