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May 2019

Michigan has developed a heritage the last few decades of restricting the rights of registered voters from fully participating in the workings of the state and local government.

It's been a slow but calculated effort over a number of legislative sessions – think in terms of several attempts over the years to tighten restrictions on the rights of citizens to recall a public official, or lawmakers' trickery on more than one occasion to prevent state voters from launching initiative petitions to negate adopted legislation by attaching appropriations to the bills which, under the constitution, precludes citizen initiative efforts to overturn legislative action.

The most recent, and egregious, example has to be the controversial bill passed during the lame duck session at the end of 2018 which basically made it all but impossible to place an issue on the statewide ballot via the citizen petition route. Of course, the right of a citizen to initiate a ballot petition drive for voter approval on the ballot is enshrined in the state Constitution. But Lansing lawmakers are empowered to enact regulations to govern the petition process, and there appears to have been a collective reaction to the fact that critical issues, ignored by the legislature, made it onto the 2018 ballot thanks to the efforts of citizens and not those elected to handle such matters.

It was going to be tough enough in coming elections to gather the necessary signatures on any issue because the required number of signatures has greatly increased due to the heavy voter turnout in the 2018 election for governor, which in turn determines the number of petitions that must be submitted. But at the end of last year, the GOP-controlled state House and Senate enacted legislation, which then-Gov. Snyder signed, to severely restrict the citizen petition process. Among the changes, those circulating a petition must now file an affidavit with the Secretary of State and indicate whether they are a volunteer or paid circulator. An earlier deadline has been set to get an issue on the November general election ballot. And if the board of state canvassers ultimately rules against submitted petitions, then any court challenged must be filed with the Michigan Supreme Court within three days, a near impossible task for most organizations seeking to place an issue on the ballot.

The biggest impediment to future citizen petition drives, however, is that the new rules contain a proportionate requirement which prohibits a petitioner from getting more than 15 percent of signatures from any one congressional district, which forces petitioners to work at least seven of the 14 current congressional districts and petitions must be separated by congressional district, as if signers even know the district in which they live.

Republican supporters of the new law say this forces petition group to take their message to a broader audience across the state, which sounds good on the face of it. Snyder, signing it into law with hundreds of other bills from the lame duck session, said the new rules would bring “geographic diversity” to citizen ballot drives. Most others felt otherwise, like the ACLU, anti-abortion activists and current/former workers from the Secretary of State's office which must enforce petition drive regulations. Even Brooks Patterson railed against the legislation.

As of this writing, Michigan Attorney General Dana Nessel has been asked to render an opinion as to whether the new requirements are constitutional, although it will be months before we know the outcome, despite Nessel's early indication that she suspects the legislation is seriously flawed. An attorney general's opinion is binding on all state agencies. But should she rule against the lame duck session rules changes, the issue will then likely move into the courts where there have been mixed rulings nationally as other states have attempted similar proportionate restrictions.

If these rules had been in effect years ago, one has to wonder whether we would have, for example, the term limitations amendment now in effect or the bottle deposit system, both of which made the ballot through citizen petition drives.

Regardless of how the lame duck law plays out in the coming months, at some point in the near future the entire system by which initiative petition drives are conducted is destined to change, thanks to advances in technology, but you can bet the changes will take a vote of the people to put them into place if lawmakers think their ox is being gored.

Let's look for a moment at what is taking place in Boulder, Colorado. In 2018 voters in Boulder approved, by a 71 percent margin, to change the city charter to allow electronic and online petitions for “initiative, referendum and recall(s).”

A committee appointed by the city commission is now looking at a two-phase implementation which would allow for further exploration of software for tablets and online efforts that would allow for electronic signatures and automatically check and verify voter addresses, saving state and municipal clerks the time and effort of having to verify petitions. There is software already on the market that would link with voter data bases and would provide a cumulative total for those out gathering signatures but there are a number of issues still to be worked out.

Gone will be the days of having to go door to door to circulate a petition, or anchoring yourself at the local grocery store to gather signatures.

Colorado will likely be the test situation. Similar state-wide efforts were defeated at the polls in Nebraska, Arizona and Tennessee and the two companies that have developed software for citizen petition drives have run into resistance from opponents who are attempting to tie these companies up in court.

Call it fear of a signifiant change for those who hold the power when direct democracy is within reach of the citizenry. But change is coming, probably at the same rapid pace that other technological advances have occurred. If you doubt it, just consider for a moment the online petition website has 100 million users in 196 countries. The popularity of online petitions has allowed the masses to become accustomed to weighing in online and in many cases having an impact.

If the 2018 lame duck petition legislation is not negated by the attorney general or overturned by the courts, then I for one would support a correctly-detailed ballot issue that brings modern-day technology into play when it comes to citizen petition drives. And while not a big fan of amending the state Constitution, we need the iron-clad protection this would provide from predaceous politicians whose main concern is retaining their power as we saw in the last legislative session.

When representative democracy fails – largely the result of those doing the governing – then power must be returned to those governed.

David Hohendorf


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