The Michigan Court of Appeals has declared unconstitutional several portions of 2018 PA 608, the state’s ballot drive law.

In League of Women Voters of Michigan v Secretary of State (Docket No. 357984), the Court of Appeals struck down the 15 percent cap on signatures in MCL 168.471, 168.477(1) and 168.482(4). The appeals court also deemed unconstitutional the requirements in MCL 168.472(2) that paid circulators file an affidavit with the Michigan Secretary of State and that each petition indicate whether a circulator is paid or a volunteer.

The Court of Appeals, however, upheld the checkbox requirement in MCL 168.472(7).

The 23-page published opinion was written by Judge Amy Ronayne Krause. Judge Kirsten Frank Kelly joined the opinion.

Judge Thomas C. Cameron authored a concurring opinion, saying he wrote separately “to examine the checkbox issue and underscore its constitutionality.”

Background

2018 PA 608 was passed in 2018 near the end of Gov. Rick Snyder’s term. When the law was proposed, it was claimed the proposal would add transparency and accountability to the petition-gathering process. Supporters also asserted the law would ensure greater statewide input on those ballot drives funded by out-of-state interests.

However, some believe the law has since made it more difficult to launch ballot initiatives. In fact, various parts of the law have never taken effect because of a legal opinion issued by the Michigan Attorney General and several court rulings.

In 2020, a Court of Appeals panel held that portions of the law were unconstitutional. That decision was appealed to the Michigan Supreme Court (Docket Nos. 160907 and 160908), which held that the case was moot because a plaintiff had dropped a ballot drive due to the coronavirus pandemic.

The League of Women Voters of Michigan and other groups then filed the present case in February 2021.

Geographic Requirement

In its opinion, the Court of Appeals first addressed the law’s geographic requirement.

“The Court of Claims ruled that the geographic requirement violates the constitutional provisions regarding initiative petitions and constitutional amendments because those provisions are self-executing,” the Court of Appeals said. “We agree.”

At the outset, the Court of Appeals ascertained whether the statutory requirements are merely procedural. “We do not view a geographic requirement that limits voter participation in the initiative process as pertaining to ‘procedures’ regarding initiatives. Rather, the geographic requirement places additional limitations on the electorate’s power under the Constitution. … As self-executing provisions, Article 2, § 9 and Article 12, § 2 may not be encumbered by supplemental legislation.”

According to the Court of Appeals, the 15 percent geographic requirement “does not make the initiative process more available to the electors, but instead curtails the rights of certain voters to have their signatures counted toward a ballot proposal. Put more simply, it will disenfranchise some electors and seriously burden the work of circulators - especially circulators who have limited resources.”

It was argued that the geographic requirement likely would increase the “total quantum of speech” on public issues, the Court of Appeals observed. However, “that argument is weakened by the fact that the geographic requirement is not a minimum, but instead is a preclusive cap on voters’ signatures and the cap does not serve the state’s proffered purpose. It will instead have the effect of reducing the ‘total quantum of speech.’ Finally, it should go without saying that getting a measure onto the ballot in no way assures that the measure will actually be approved by the voters; it only ensures that the measure will be considered.”

Moreover, although Michigan law requires candidates running for certain statewide offices to obtain signatures from at least half of the state’s congressional districts, “no geographic requirements have ever applied to ballot petitions - until 2018 PA 608,” the Court of Appeals pointed out.

“Our Constitution … contains no geographic distribution requirement in the text,” the Court of Appeals wrote. “Under the longstanding constitutional structure, a registered voter anywhere in Michigan could sign a petition and that signature would be counted in support. In contrast, under the 2018 PA 608 amendments, a voter’s signature would not be counted if the geographic cap had been reached in his or her district. The new statutory bar to counting voters’ signatures simply is not in line with the intent of the framers of our current Constitution. … Had the people wanted to tie a geographic condition to the process, they would have done so.”

Therefore, the geographic requirement does not survive constitutional scrutiny, the Court of Appeals ruled. “We hold that the provision in MCL 168.471 imposing a 15% geographic limit, as amended by 2018 PA 608, establishes an unnecessary and unreasonable restraint on the constitutional right of the people to initiate laws. It therefore is unconstitutional. The provisions of other statutes involving the 15% geographic requirement, MCL 168.477 and MCL 168.482(4), likewise are unconstitutional.”

Petition Circulators

Next, the Court of Appeals examined the requirements concerning petition circulators.

“The Court of Claims concluded that the checkbox requirement does not substantially relate to a sufficiently important governmental interest and is therefore unconstitutional,” the Court of Appeals wrote. “We conclude that the checkbox requirement imposes little to no burden on political speech and substantially relates to an important governmental interest. The Court of Claims therefore erred in holding it to be unconstitutional.”

According to the Court of Appeals, petitions circulated by paid circulators provide the state and campaigns with a “valuable monitoring tool” for tracking petitions that may warrant additional scrutiny. “[W]e are persuaded that the state has a compelling interest in ensuring that the political speech involved in circulating petitions comes with a ‘full disclosure’ whether it is paid or volunteer. Furthermore, the checkbox requirement, by itself, is clearly narrowly tailored.”

The Court of Appeals said it recognized that adding a checkbox and ensuring that it is correctly marked will impose “some administrative burden” on campaigns. “We are not persuaded that the minimal additional administrative review, given the need to inspect petitions in any event, and the added value of knowing which petitions may demand extra scrutiny, is significant. Finally, we observe that the checkbox requirement applies equally to all circulators. Even if we were to conclude that the checkbox requirement imposes some burden, it is not a significant one. We therefore conclude that it passes constitutional muster.”

The Court of Appeals then addressed the affidavit requirement. “[W]e struggle to comprehend any compelling interest served by the affidavit, where the Michigan Campaign Finance Act, MCL 169.201 et seq., requires sponsors of ballot question committees to report the names, addresses, and amounts contributed by financial supporters.”

The Court of Appeals explained that MCL 169.206(1) directs petition proponents to report whether they are hiring a firm that employs paid circulators. “Intervening defendant … has not shown why an affidavit relating to an individual circulator’s status, rather than information from sponsors of a petition, would advance the state’s interests. … Given the fact that the affidavit must be submitted before signatures may be collected, and it applies only to paid signature gatherers, it can be seen as imposing a significant burden on the right of political speech protected by the First Amendment. … Accordingly, the affidavit requirement does not meet the strict scrutiny standard, so we hold that it is unconstitutional.”

Severability

In conclusion, the Court of Appeals examined the severability issue, noting that portions of a statute found to be unconstitutional are not to be given effect if the remaining portions of the statute remain operable.

Here, 2018 PA 608 included no express severability clause, the Court of Appeals pointed out. “Nevertheless, we are convinced that 2018 PA 608 can be given effect without the 15% geographic requirement, the checkbox requirement, and the precirculation affidavit. 2018 PA 608 contains other provisions that leave it operative such that the entire act need not be declared unconstitutional.”

Further, there is no indication that the Legislature would not have adopted 2018 PA 608 “if it had been aware that portions of it ultimately would be found unconstitutional,” the Court of Appeals said. “2018 PA 608 therefore may be read as if the offending provisions are not there. Thus, when the unconstitutional language is severed, the remainder of the act is complete in itself and is not inoperable.”

Based on the foregoing analysis, “[w]e affirm the Court of Claims to the extent it struck as unconstitutional the 15% geographic requirement in sections MCL 168.471, MCL 168.477(1), and MCL 168.482(4),” the Court of Appeals concluded. “We reverse the Court of Claims to the extent it found unconstitutional the checkbox requirement in MCL 168.472(7), and we reverse the Court of Claims to the extent it found constitutional the precirculation affidavit requirement of MCL 168.472(2).”