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House and Senate File Lawsuit Challenging Attorney General Opinion

Jun 07, 2019

This week, the Michigan House and Senate filed two lawsuits against Secretary of State Jocelyn Benson for refusing to follow the 2018 petition initiative law that Attorney General Dana Nessel declared unconstitutional through an official opinion.

The 2018 law, passed by the legislature and approved by former Governor Rick Snyder, required that not more than 15% of certified signatures come from any one congressional district. Additionally, it required initiative campaigns to provide a short summary at the top of their petitions and circulators to prominently display their paid or volunteer status. The law also stated that signatures collected from fraudulent information would be invalidated.

Through her opinion last month, Attorney General Dana Nessel found the follow aspects of the law unconstitutional:

    • Under Michigan’s Constitution, advocates to adopt or reject laws or to propose constitutional amendments must gather signatures on petitions to get those proposals on the ballot.   P.A. 608 added a new limit by requiring that no more than 15% of the total number of signatures counted in support of a petition can come from any one of Michigan’s 14 congressional districts. The Attorney General found the new requirement to be unconstitutional because it creates an obstacle for voters.
    • To accommodate the new 15% signature limitation by Congressional district, P.A. 608 required the Secretary of State to create petition forms based on congressional districts rather than counties. The opinion concluded that with the signature-by-district requirement having been found unconstitutional, the legislature would not have intended the use of district-based petition forms.
    • P.A. 608 requires that a paid signature gatherer file an affidavit with the Secretary of State indicating they are a paid signature gatherer before circulating any petition sheets and that any signatures obtained before that affidavit is filed are invalid. P.A. 608 also requires that the petition forms have a circulator disclosure statement that has “check boxes” on the form for the signature gatherer to indicate they are either a paid or volunteer gatherer. The opinion concludes that focusing on petition circulators rather than proponents of the petition, singling out paid circulators with a separate procedural hurdle, and requiring “check boxes’ are all new requirements that fail to withstand constitutional concerns aimed at preserving free-speech rights. 

The cases will now head to the courts for their decision.

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