Eleven Republican state legislators have asked a federal district court judge in Michigan to declare that two amendments to the state constitution dealing with election procedures in federal elections are invalid and unenforceable because the legislature did not vote to approve their provisions prior to the referendums in which they were passed.
The question is whether the petition-ballot initiative procedure outlined by the Michigan Constitution violates the state legislators’ rights by usurping their legislative powers specified in the Elections Clause of Art. 1, Sec. 4 of the U.S. Constitution, because, as the complaint states, “the direct democracy process involves no involvement or approval by the state legislature.”
The clause reads, “The Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”
The amendments originated from citizen initiatives in 2018 and 2022. The effort required the collection of hundreds of thousands of signatures on petitions to place the proposals on the general election ballot.
In both instances, the requisite number of valid signatures was obtained, and each proposal passed with over 60 percent of the popular vote.
At the time, some Republicans protested that the wording of the complicated proposals was intentionally vague and confusing and warned that the amendments would weaken election integrity and ballot security.
On Aug. 31, 2022, the four-member, bipartisan, Board of State Canvassers blocked Proposal 2 from being placed on the ballot when it deadlocked two to two, with half the members complaining that the language of the ballot initiative was misleading.
A few days later, the Michigan Supreme Court ruled that the initiative should be placed on the November ballot.
Evidence of Usurpation
Michigan Ballot Proposal 3 of 2018 enshrined in the state constitution the right of a person to be automatically registered to vote as a result of conducting business with the Secretary of State’s office. It shortened the length of residency required to register to vote and legalized election-day voter registration and no-reason absentee voting.The office hours of election workers to receive absentee ballot applications or absentee ballots were extended, and the right to vote a straight party ticket by marking one box was included.
Michigan Ballot Proposal 2 of 2022 enshrined the right of a person attempting to vote without a photo identification card to sign an affidavit attesting to his or her own identity and to be issued an absentee voter application or a regular ballot and not a provisional ballot.
Proposal 2 also made it a constitutional right for a prospective voter who has turned in an absentee ballot application or an absent ballot envelope without a signature, with a defective signature, or a signature that does not match the one on file, to be given an opportunity to correct any issues.
The proposal also made it a right for a person who votes absentee one time to request to automatically be sent an absentee ballot for every subsequent election.
Every municipality in the state was also given “the right to at least one state-funded secure drop-box.” Larger jurisdictions were given the right to have one drop-box for every 15,000 registered voters.
The right to state-funded pre-paid postage on envelopes for an absentee ballot application or an absentee ballot envelope was also guaranteed by the state constitution.
Overseas civilian and overseas military ballots, if postmarked before the date of the election, can now be accepted six days after the polls close.
Under the amendment, early voting sites will be opened to serve voters from up to six different precincts who may desire to vote there. Early voting sites may also serve voters from more than one community in a county.
Michigan voters were also granted the constitutional right to cast ballots for nine consecutive days, beginning on the second Saturday before the election and ending on the Sunday before election day.
A taxpayer-funded system to digitally track the status of absentee ballot applications and voted absentee ballots also became a constitutional right.
Protecting the Constitution
The state legislators assert that they have federal rights under the Election Clause to oversee and participate in making legislative decisions regulating the times, places, and manner of federal elections.The plaintiffs are State Senators Jonathan Lindsey and James Runestad; and State Representatives James DeSana, Rachelle Smit, Steve Carra, Joseph Fox, Matt Maddock, Angela Rigas, Neil Friske, Brad Paquette, and Josh Schriver.
Concerns for the Future
Mr. Schriver said that a failure by the people’s elected representatives to protect the Constitution “would cause unimaginable suffering for all generations to come.”The plaintiffs state in their complaint that their purpose is to prevent the use of the petition-to-ballot process, as laid out in Art. XII, Sec. 2 of the Michigan Constitution, to amend the constitution in a way that usurps the state legislators’ rights to regulate federal elections in the future.
The complaint says, “Such petitioning or state ballot processes, when the legislators are excluded from those processes, undermines the state legislature as the entity assigned particular authority by the Federal Constitution to regulate the time, place, and manner of federal elections.”
The defendants in the case are Michigan Governor Gretchen Whitmer and Secretary of State Jocelyn Benson, both Democrats.
The third defendant is the Benson-appointed director of the Michigan Bureau of Elections, Jonathan Brater.
The complaint alleges that the defendants “support and enforce laws that violate the Election Clause because such enacted amendments are legally null-and-void…when they directly or indirectly regulate federal elections.”
Ms. Whitmer did not respond to a request for comment.
An Exclusive Prerogative
The plaintiffs are asking the U.S. District Court for an injunction barring the defendants from enforcing the processes specified in the amendments and from spending any taxpayer dollars to support or facilitate them.As there was no authority for the referendums to begin with, the plaintiffs wanted to see both amendments declared constitutionally invalid “in their entirety.”
Is After-the-Fact Approval Good Enough?
When the Democrats took control of both houses of the state legislature in January 2023, they immediately went to work passing a series of bills that turned nearly every clause of Proposal 2 of 2022 into statutes that were promptly signed into law by Ms. Whitmer.
David Kallman of the Great Lakes Justice Center and Erick Kaardal of the Thomas More Society are constitutional lawyers representing the plaintiffs.
In an interview with The Epoch Times, Mr. Kallman said he expects that some people will claim that the belated actions of the legislature made everything right.
“But it doesn’t work that way. A violation occurred, and the attempt to fix it years later does not change that.
“We have a very straightforward case. The reality is that, through a unique set of circumstances, the legislature was bypassed and had no say in the two amendments that determined the times, places, and manner of federal elections. That fact speaks for itself.
“The invalid amendments must be removed from the Michigan Constitution.
“A favorable ruling may prompt other state legislatures to mount similar challenges. There could also be a broader application of this case, giving pause to over-zealous secretaries of state and election administrators around the country who have been issuing directives governing election practices without the approval of the legislature.
“Our clients’ request for an injunction is to ensure that such usurpations don’t happen again in the future here in Michigan,” Mr. Kallman said.
The laws enacted by the state legislature to regulate federal elections are subject to a veto by the governor and must give way to any conflicting act of Congress.
