August 2021

The right of citizens in Michigan to initiate law or constitutional changes by initiative petition has been subjected to a series of challenges on its labored route to become part of our state's governing document, starting with the efforts of two Detroit doctors back in 1895 and continuing today when the initiative petition may well be used to actually restrict the rights of residents here unless some major revisions to this process are made.

Ballotpedia, the digital encyclopedia of American politics, and other sources document how George F. Sherman and David Inglis, two physicians from the Motor City, formed an organization – the Direct Legislation Club – back in the late 1890s and spent over a decade pushing for support of the rights of citizens to petition the state government to create law and amendments to the Constitution. As the story goes, the stumbling block then was Republican state lawmakers (sound familiar?) who sensed a loss of power if citizens could initiate state statutes and constitutional changes.

Finally, in the 1907 Constitutional Convention an amendment was proposed, which voters ratified in 1908. Supporters were quick to learn that the amendment was too restrictive, as evidenced by the fact that no issues made it to the ballot. So state lawmakers were eventually persuaded to make changes, establishing the base of what we have now that allows citizens to petition the government to create law or put amendments to the Constitution before voters.

Jump forward to the Constitutional Convention of 1961-1962, and the right for initiative petitions – to write laws and veto referendum on those laws citizens oppose, as well as asking voters to change the Constitution – were fine tuned even more and ratified by voters in the spring of 1963. So it is under what has become the Constitution of 1963 that we now operate.

The overriding goal of initiative citizen rights was to eliminate the legislature's involvement if voters approved something.

To avoid dragging readers too far into the weeds, here's the basics. If citizens can gather signatures on petitions equal to eight percent of votes in the most recent election for governor (340,047 for 2021), they could initiate state law. To attempt to veto referendum laws passed by the legislature, the requirement is five percent of the gubernatorial vote total (212,529 for 2021). On amendments to the Constitution, 10 percent (425,059 for 2021) of the recent vote would be required to put an issue on the general election ballot.

It's the initiative legislation portion of the Constitution that is likely to capture headlines in coming weeks and months, as the Republican-dominated state House and Senate pass some or all of the 39 election-related bills now moving in both chambers, some of which are contrary to voter sentiment expressed when they approved Proposal 3 in 2018.

Many, including this writer, have taken comfort in the fact that the portion of this package that has all the potential for making the voting process more cumbersome, if not discouraging, for everyone but especially certain segments of the population, would likely be vetoed by Gov. Gretchen Whitmer, who has vowed not to sign any bill that may impede voting rights.

Now the word is that GOP lawmakers may have an end run around a Whitmer veto, using the citizen initiative process to lessen our rights to vote.

The process now provides that a citizens initiative petition to enact legislation, once sufficient signatures have been collected, is submitted to the legislature which has 40 days to take action. Their choices are to enact what is in the petition or the issue goes on the next general election ballot for voters to determine its fate. Lawmakers cannot change the legislation proposed by the petition, although they can write their own legislation which would appear on the same ballot as an alternative to the citizen initiated proposed law.

If lawmakers do approve the citizen initiative statute, it is not subject to veto by the governor. Lawmakers can amend the initiative law once enacted.

As the scenario goes, Republican legislators, should Whitmer veto any of the pending election bills, will encourage a “citizen” initiative to put the same bills before lawmakers for adoption that would not rely on approval of the governor. That's the route they recently took with bills to strip the emergency executive order powers of the governor. A “citizen” group (using that term loosely) ran a signature drive and handed GOP lawmakers the law stripping executive powers that Whitmer had used starting in spring of 2020 to control the impact of the COVID-19 pandemic on the health of Michigan residents.

Ironically, the right to petition the state government has come full circle and may now be used to limit the voting rights of constituents prior to the 2022 elections. And it will be orchestrated by the party that has controlled the state Senate since 1992 and the House for 21 of the last 30 years. Remember, this is the party that stood as the impediment to initiative rights over a century ago.

It will no doubt take an amendment to the current Constitution to remedy this situation.

The most pressing change desperately needed is to take the legislature completely out of the process – which is what this process was intended to do from the start. Citizen initiative legislation should just go directly to the general election ballot, and skip the game-playing by political clowns whose main concern is preserving their own power. Constitutional changes already require a state-wide vote at a general election, so let's do the same with initiative legislation.

And while we are at it, let's look at the Citizen Research Council (CRC) recommendations from 2014 and 2018, among them, developing some language and legal review for petition drives before circulators start the hunt for signatures.

A number of states already do this and it may well cut down on the lawsuits once petition signatures have already been gathered. Advance reviews in some states involve the attorney general, the Supreme Court or independent third parties. The CRC even suggested that a review by the Michigan Legislative Service Bureau could ensure that a proposal would meet the drafting standards used by lawmakers.

The debate on a Constitutional amendment change should also include discussion as to the signature thresholds set a century ago. As the CRC suggested, the required number of signatures for any citizen effort must take into consideration the “advances in communications, transportation and political engagement.” Further, electronic signatures – a topic just being raised before the court system – must be allowed as part of the initiative process, as they are when it comes to other legal documents.

Part of any discussion should also focus on whether budget bills should still remain protected from referendum petitions given that lawmakers in recent years have passed controversial bills and then tacked on funding in the same bill so that citizens could not attempt to veto the legislation via the referendum petition route.

Lastly, let's hear some discussion about whether there should be a greater percentage of gubernatorial votes required to place a constitutional amendment on the ballot, as opposed to the two-point spread from the initiative law requirements, another of the CRC recommendations.

We need a ballot issue for 2022 that prevents, first and foremost, devious misuse of citizen initiatives like we may see in the months ahead, and at the same time provides updates to this process so it reflects the changing realities of modern life.

David Hohendorf

Publisher

DavidHohendorf@DowntownPublications.com