Michigan received unflattering national attention last month when the GOP-controlled Legislature tried to strip incoming Democratic officials of their authority before they could take office. Thankfully, many of those attempts failed. A bill that would have eliminated the secretary of state’s campaign finance oversight died in the state House. Outgoing Gov. Rick Snyder vetoed a bill that would have curbed the attorney general’s litigation authority.
But Michigan’s democracy did not emerge unscathed. In particular, its outgoing Legislature enacted one law that significantly reallocated the state’s constitutional division of authority—by stripping power from the people. The bill, HB 6595, severely curtails direct democracy in Michigan. It disproportionately disenfranchises minority voters. And it is inconsistent with the Michigan Constitution and should be struck down as soon as the state’s judiciary has the chance.
Some background: Michigan’s constitution, like many states’, reserves for “the people” the power to directly change the law. The process is arduous but straightforward. If enough registered voters (equal to 8 percent of the turnout in the prior gubernatorial election) sign a petition, they can place on the ballot a question as to whether a new law should be adopted. If an even higher number of registered voters sign (10 percent of turnout in the prior election) they can place on the ballot a question as to whether the constitution itself should be amended.
In either event, every voter in Michigan has an opportunity to weigh in. A voter-initiated law will be adopted, or the constitution amended, only if the ballot question is approved by a majority of voters in the next statewide election. As the U.S. Supreme Court has explained, ballot initiatives like these serve as a “check” on recalcitrant state legislatures. If legislators fail to do the people’s bidding, the people can circumvent the Legislature and change the law themselves.
Last year, voters in Michigan did just that. Petition gatherers collected sufficient signatures to place three proposals on the statewide ballot: one to legalize marijuana, one to reform partisan gerrymandering, and one to expand ballot access. All three of those proposals were generally opposed by the GOP, meaning they stood virtually no chance of being enacted by Michigan’s Republican-dominated Legislature. (The body is so deeply in the hands of the GOP thanks in large part to an egregiously gerrymandered map, it should be noted.) But each of the proposals proved extraordinarily popular among Michigan voters. In November, all three were approved by overwhelming majorities.
Stung, presumably, by these rebukes at the polls, Republican legislators hastily enacted HB 6595 to curtail Michiganders’ ability to directly adopt future laws. HB 6595, signed by Snyder just before he left office, contains several provisions that make it harder to gather signatures that would qualify a proposal for the ballot. But most unsettling—and most unconstitutional—is a provision that says no more than 15 percent of the signatures collected can be from any single congressional district.
Consider, first, the practical effects. Approximately 4,240,000 people voted in November’s gubernatorial election. Thus, in order to get a proposed constitutional amendment on the 2020 ballot, proponents will have to collect 10 percent of that number: about 425,000 valid signatures. The easiest way to collect that many signatures is to concentrate efforts in areas with higher-density populations (and bustling city centers). In Michigan, though, only a few congressional districts fit that bill. HB 6595’s 15 percent-per-district cap would thus require proposal proponents to inefficiently expend effort in districts where homes are farther between and voters much harder to reach. That would dramatically increase the expense and logistical difficulty of collecting signatures. And that, in turn, would mean that only well-funded efforts could place a question on the ballot—turning a process meant to benefit “the people” into a tool reserved for monied interests.
Supporters of HB 6595 claim that it’s a good-governance bill, meant to ensure that Michiganders from across the state get their say in any ballot question. But that makes no sense. Once a question qualifies for the ballot, every registered Michigan voter already gets a chance to vote on it. Ratcheting up the difficulty in collecting signatures doesn’t empower any voters, rural or urban. To the contrary, it makes it less likely that any voter will ever get a chance to vote on any given ballot question.
To make matters worse, HB 6595 has severely disproportionate racial effects. Michigan’s black population is heavily concentrated in two congressional districts in and around Detroit: District 13 (which is 56 percent made up of black voters), and District 14 (which is 58 percent made up of black voters). None of Michigan’s 12 remaining districts has anywhere close to that level of black residents. Thus, if HB 6595 is put into effect, black voters would be disproportionately affected, and ballot questions with strong support in the black community would be hamstrung as signature gatherers would be prohibited from gathering “too many” signatures in Michigan’s only two majority-minority districts.
The only bright spot? HB 6595 so plainly violates Michigan’s constitution that there is a good chance it will be invalidated. Michigan’s constitution provides that any registered voter may sign a ballot-question petition. Nothing in the constitution hints that a voter’s right to sign a petition depends on how many of her neighbors have signed. Nor does the constitution say that the Legislature can add restrictions to the constitution’s minimal signature requirements.
In fact, it would be bizarre if the Legislature could add such signature requirements. Ballot questions exist so that “the people“ can circumvent the Legislature and enact laws on their own accord. If that same Legislature were allowed to impose onerous signature requirements, it could choke out what little lawmaking authority “the people” reserved for themselves. That is inconsistent with the concept of direct democracy. Toward that end, the Michigan Supreme Court long ago held that “the legislature may not act to impose additional obligations” on ballot-question petitions.
Given all of that, there is a good chance Michigan’s judiciary will invalidate HB 6595. At best, though, the law will provoke a lengthy, expensive court fight, during which there will be significant uncertainty as to which rules govern ballot initiatives. And if HB 6595 is somehow upheld, it will gut Michigan’s proud tradition of direct democracy.