Jurisprudence

It’s Not Just Abortion Rights. Michigan Republicans Are Undermining Democracy.

Abortion rights activists protest outside the US Federal Courthouse after the US Supreme Court overturned Roe Vs. Wade, in Detroit, Michigan on June 24, 2022.
Abortion rights activists protest outside the U.S. Federal Courthouse in Detroit after the Supreme Court overturned Roe v. Wade, on June 24. Jeff Kowalsky/Getty Images

On Wednesday, the Michigan Board of State Canvassers deadlocked along partisan lines about whether to allow a state constitutional amendment to protect reproductive freedom onto the ballot this November. There is absolutely no basis to block the ballot initiative, which received a record number of supportive signatures.

The actions of the Michigan Board of State Canvassers underscore two alarming trends in this new, post-Roe world. One is that the Republican Party’s continuing attacks on voting rights have made it harder for people to protect their reproductive autonomy at the ballot box, and easier for the GOP to undermine reproductive freedom. The other is that this tactic is not limited to reproductive freedom: In many different contexts and through many varied means, Republican lawmakers are more than willing to attack democracy in order to get what they want.

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The Michigan Reproductive Freedom for All ballot initiative is a proposed amendment to the Michigan state constitution that would specifically and explicitly protect the right to abortion, among other reproductive freedoms, and limit the state’s ability to control women’s bodies and their pregnancies. Michigan is one of several states that has on the books a pre-Roe criminal abortion ban. Originally enacted in the 1800s when women lacked the right to vote, the law bans all abortions at any stage of pregnancy (with a limited exception for where an abortion is necessary to save the life of the pregnant person), and was recodified in its current form during Prohibition.

As it became clear that the Republican-controlled United States Supreme Court would eviscerate reproductive freedom, organizers in Michigan went about the difficult task of collecting signatures in order to get an initiative on the ballot for this upcoming November. They succeeded and more: The Reproductive Freedom for All ballot initiative received a record number of signatures from Michiganders who wanted the chance to safeguard their reproductive freedom.

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But Republican legislators were not about to let the people actually decide the future of reproductive freedom in Michigan. (They saw what happened in Republican-leaning Kansas, after all.) And so they mounted a spurious challenge to the Michigan ballot initiative, arguing that the petitions contained less than optimal spacing between the words on the petition.
That’s right: There were no missing words in the petition; no misleading words; no inaccurate words. Just some words they felt should have been spaced further apart.

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The challenge was ludicrous, not only because there is no serious argument that any less-than-ideal spacing may have confused voters. It’s ludicrous not only because refusing to certify the ballot initiative would disenfranchise the hundreds of thousands of Michiganders who signed petitions. It is also ludicrous because there is nothing – absolutely nothing – in Michigan law prescribing any requirements as to a petition’s spacing. There was accordingly no basis for the Board of State Canvassers to refuse to allow the petition on the ballot.

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But no matter; they did it anyway. The Republican Board members’ votes underscore how the Republican Party’s attack on reproductive rights is possible only because of their war on voting; both are part of the party’s broadside challenge to self-determination.

The reality is that a majority of Americans – and a majority of Americans in many states – do not want the government to be able to force people to give birth. A majority of Americans don’t think states should be able to write laws that force women to bleed for days and come close to death before they can receive medical care.

And so the Republican Party has to pursue those goals through antidemocratic means. They blocked former President Barack Obama from confirming a nominee to the Supreme Court in the final year of his presidency before turning around to confirm Justice Amy Coney Barrett to the court as a presidential election was already underway. They have gerrymandered congressional districts and state legislatures to allow them to remain in power even if they lose a majority of votes. They have enacted restrictive voting laws that disenfranchise voters. They are seeking to draw legislative districts in ways that would reduce the voting power of racial minorities. They are now trying to erase and conceal their true position on abortion from voters.

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All of these measures, and others, allow Republicans to pursue policies that are not supported by a majority of voters because the measures allow Republicans to stay in power even if a majority of voters want them out. That’s part of what made this statement from Justice Samuel Alito’s opinion overruling Roe so galling: “the authority to regulate abortion must be returned to the people and their elected representatives.” The court has allowed elected representatives to evade the people, time and again.

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The Michigan Board of State Canvassers decision is part of this trend: The Board would have allowed the Michigan GOP’s position – no abortions, anytime, for most anyone – to prevail even though hundreds of thousands of voters wanted the chance to vote against it.

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The Board’s other decision on Wednesday underscores the extent to which the Republican’s war on reproductive freedom depends on their war on voting rights. The Board also deadlocked on a voting rights initiative that would have allowed voters to consider a proposed ballot initiative to secure voting rights in myriad ways (including through automatic voter registration and more available absentee voting). The Republican members of the Board also voted against allowing that ballot initiative to be included on the ballot this November. Their tactics could not be any more transparent: Reproductive freedom is popular, and so the Republican Party will do what it takes to ensure the people don’t actually get to vote on reproductive freedom, even if that means ensuring they don’t vote at all.

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Of course, it’s not only reproductive freedom in the Republican Party’s crosshairs. The Republican Party’s tactics are also a broadside attack on democracy itself – to overturn the will of the voters if that’s what it takes to stay in power. Their position seems to be that if the political process or the votes do not result in Republicans’ victory, then the political process and the votes are illegitimate.

Some early signs about what might follow from this position were clear on Jan. 6, 2021, when an armed mob stormed the capitol (at the urging of several Republican officials) in order to prevent the winner of the 2020 presidential election, Joe Biden, from assuming office.
But there are other ways of killing democracy besides an armed insurrection. And that seems to be where the Republican Party has turned its gaze now. Their current approach is to try and control the state and local offices that oversee elections such that state and local election officials can assert the power to override the will of the voters. Along these lines, President Trump has endorsed election deniers for state and local offices that oversee elections – including in Michigan, but in many other places as well.

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These endorsements seem to premised on the possibility that the state and local officers would, in the future, refuse to certify ballots or results if the ballots or results didn’t fall in the Republicans’ favor. And, they seem to assume, the federal courts stacked with Republican appointees, as well as some number of Republican state judges, wouldn’t lift a finger to stop them.

In a post-Roe world, the reality is that state and local elections matter more than ever. Not just because they will determine whether women can be prosecuted for trying to control their bodies and their lives. They also matter because they will determine whether the people have a say over the future of their country and their elected representatives. That will be the case not just during this upcoming election cycle but in future ones as well. Because it seems that whenever they have the chance, the Republican Party is fine with throwing out democracy in order to get their way.

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The Michigan State Board of Canvassers isn’t the end of the road for the Reproductive Freedom for All ballot initiative, which will likely go next to the Michigan Supreme Court. That court has had a majority of Democratic justices since the 2020 election. It’s because organizers focused on state and local elections and succeeded in flipping control of the Michigan Supreme Court that voters still have a chance to actually have a say over their reproductive freedom. (One Democratic justice, Justice Richard Bernstein, is up for reelection this year. Another Democratic justice, Justice Kyra Bolden, is challenging one of the Republican Justices.)

The Republican Party understands the need to control state and local government offices in order to beat democracy. The Democratic Party and Democratic voters must understand the need to control state and local government in order to safeguard democracy, in addition to reproductive freedom.

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