Jurisprudence

The Republican Sneak Attack on Michigan’s Mask Mandate Could Be Devastating

In a crowd, a woman in blue wig holding an American flag holds up sign that says "Open the Damn Salons."
People protest in front of the state Capitol on May 14 in Lansing, Michigan. Scott Olson/Getty Images

In late March, Michigan was one of the states that was hardest hit by the initial onslaught of the COVID-19 pandemic. COVID cases and deaths skyrocketed while hospital ICUs overfilled, and Gov. Gretchen Whitmer enacted a strict set of emergency orders designed to bring the deadly outbreak under control.

The governor then carried out a slow, cautious reopening by keeping many of her stay-at-home orders in place through late May. Most recently—over loud braying and protests from the state’s conservatives—Whitmer put in place orders that require masks in public spaces and prohibit high-risk businesses like gyms and bars from fully reopening.

By most public health measures, Whitmer’s response has been a success that has saved thousands of lives, a feat that’s earned her national praise.

Naturally, Michigan’s Republican Party wants to put a stop to that.

Michigan Republicans are now attempting to execute a plan to strip Whitmer of her emergency order powers—and unilaterally end the protections she has put in place against the pandemic—by exploiting their favorite state constitutional loophole. That mechanism had been obscure until the past couple of years, when Michigan Republicans used it to kill a popular minimum wage increase, kill the state’s popular prevailing wage law, and attempt to push through extreme abortion limits.

The loophole allows GOP legislators to partner with conservative activists and residents to enact veto-proof legislation that only needs about 340,000 petition signatures to become provisional law.

In short, only about 4 percent of the electorate will have a say on a life-and-death matter for the rest of the state’s residents. The effort rests on a popular provision in the Michigan Constitution that allows citizens to propose legislation. In past years, citizen-initiated legislation has led to popular laws that made it easier to vote, legalized marijuana, and established a bottle return program. The way it ordinarily works is that once citizen groups collect 340,000 valid signatures, a proposal is put to a vote by the entire electorate. But the loophole allows the Legislature to approve citizen-initiated proposals and make them law before they are actually put on the ballot, with any such legislation being veto-proof.

If the current petition drive is successful, Whitmer would be required to seek the Republican-controlled Legislature’s approval to extend emergency orders beyond 30 days. That would spell the end of Michigan’s pandemic management, and an increase in cases and suffering would undoubtedly follow.

Whitmer called the pandemic power grab “irresponsible, dangerous and foolish,” but there’s little more she can do about it.

The veto-proof provision of the petition amendment exists to give lawmakers the power to avoid having to place popular measures on the ballot, which saves time and resources. The GOP, however, has frequently turned to it to enact radical and unpopular measures.

This time, Republicans are specifically aiming to repeal a 1945 law that gives governors the authority to declare states of emergency and keep them in place without legislative approval.

Unsurprisingly, the “citizen group” behind the repeal effort, Unlock Michigan, is composed of GOP consultants. They’re coordinating with Republican legislators, and the effort is largely funded by a dark money nonprofit and contributions from wealthy GOP donors. However, Michigan’s unusually loose campaign finance laws make it nearly impossible to prove who’s bankrolling the effort. It’s worth noting that even a Republican consultant who had a hand in developing the loose campaign finance laws filed a complaint with the state that claims that the dark money group funding Unlock should reveal its donors.

Mark Brewer, an election attorney with Keep Michigan Safe, a nonprofit that’s mounting a legal challenge to Unlock’s campaign, said Unlock is aiming to submit its petition by early November so the Legislature can ram through a repeal during this year’s lame-duck session.

The group is collecting signatures through several channels. Paid employees have hit the street while some businesses are keeping petitions in their shops. GOP legislators have also been hosting signing events.

Brewer says that Unlock claims to have already collected 100,000 signatures, and it likely will need to collect at least 300,000 more by November because many signatures could be invalidated.

Keep Michigan Safe’s counteroffensives includes a lawsuit that asks a court to invalidate the proposal because of its vague language. State law requires a petition’s language to provide a summary that is “accurate, truthful and discloses to voters what it would do,” Brewer said. The petition’s language only states that its proposal will repeal the 1945 emergency powers law and makes no mention of the governor losing her authority to manage the pandemic.

Collecting valid signatures can also be difficult. The Michigan GOP and anti-choice group Right to Life teamed up last year in an attempt to ram through extreme abortion limits via the same loophole. Though Right to Life collected about 400,000 signatures, a challenge mounted by a Brewer-led group found a high number of duplicates and signatures from residents who weren’t registered to vote. Those signatures were invalidated, and Right to Life was ultimately forced to abandon the effort last month.

It’s also possible that Democrats regain control of the Legislature in November, but Republicans have gerrymandered the state’s legislative boundaries into such knots that its majority is likely safe until a recently established independent redistricting commission is scheduled to redraw the map in 2022.

Some Democrats have said they aren’t entirely opposed to limiting a theoretical governor’s powers—some have questioned what an anti-democratic governor could do with unlimited emergency powers. In practice, however, the Republican Party is alone in its determination to bend the rules so it can scrap public health protections that are saving lives.

Brewer noted that the emergency powers law was created in 1945 by a Republican-controlled government and left in place by the GOP when it considered changes during the 1970s.

“This law has enjoyed broad bipartisan support and that’s the broader context—this is clearly a partisan power grab that’s only going to put public health at risk,” he concluded.

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