981 N.W.2d 538
Mich. Ct. App.2021Background
- In 2018 the Michigan Legislature enacted 2018 PA 608, which (among other changes) imposed a 15% cap on signatures from any one congressional district for statewide initiative/referendum/amendment petitions, required petitions to be sorted/reported by congressional district, added a checkbox on petition pages to indicate whether a circulator is paid, and required paid circulators to file a precirculation affidavit with the Secretary of State.
- Plaintiffs (League of Women Voters, Progress Michigan, Coalition to Close Lansing Loopholes, and Michiganders for Fair and Transparent Elections) challenged the geographic cap, the checkbox, and the precirculation affidavit as unconstitutional in the Court of Claims; the Attorney General intervened to defend the statute.
- The Court of Claims struck the 15% geographic limit and the checkbox requirement, but upheld the precirculation affidavit; the act’s offending provisions were severed.
- This Court reviewed the case on expedited appeal: it affirmed invalidation of the 15% geographic limit; reversed the Court of Claims as to the checkbox (upholding it as constitutional); and reversed the Court of Claims as to the affidavit (holding the precirculation affidavit unconstitutional).
- The court applied (1) the rule that initiative and amendment provisions (Art 2 §9 and Art 12 §2) are self‑executing and may not be curtailed by supplemental legislation, and (2) First Amendment analysis (Anderson‑Burdick sliding scale and Meyer/Buckley strict scrutiny for core political speech) to circulator regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of 15% geographic cap on petition signatures | Cap unlawfully adds a geographic restriction to self‑executing constitutional initiative/amendment provisions and unduly burdens petition rights | Cap promotes statewide support and prevents local‑only measures; Legislature has authority to prescribe petition form and circulation rules | Unconstitutional — cap and related statutory provisions violate self‑executing Article 2 §9 / Article 12 §2; reversed in favor of plaintiffs |
| Checkbox on petition pages indicating paid vs volunteer circulator | Checkbox chills speech and deters circulators; not sufficiently related to state interest | Checkbox furthers transparency and accountability; is a minimal administrative measure | Constitutional — minimal burden on speech and substantially related to important/compelling state interest; Court of Claims reversed |
| Precirculation affidavit requirement for paid circulators (must file before circulating) | Singling out paid circulators and requiring prefiling chills speech and delays campaigns; less intrusive alternatives exist | Affidavit advances election integrity, traceability, and campaign‑finance transparency | Unconstitutional — requirement singles out paid circulators, imposes significant pre‑speech burden, fails strict scrutiny; Court of Claims reversed |
| Severability of invalid provisions from remainder of 2018 PA 608 | Sever offending provisions; remainder operable and enforceable | Act should remain enforceable to the extent consistent with constitution | Severability upheld — offending provisions struck but remainder of act is operable and preserved |
Key Cases Cited
- Meyer v. Grant, 486 U.S. 414 (1988) (paid‑circulator ban infringes core political speech and fails strict scrutiny)
- Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) (struck some petition‑circulator ID/disclosure rules where they impermissibly burdened speech; distinguished affidavits vs on‑the‑spot disclosures)
- John Doe No. 1 v. Reed, 561 U.S. 186 (2010) (petition signature gathering and circulation are protected First Amendment activity)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (Anderson‑Burdick balancing framework for election‑law burdens)
- Burdick v. Takushi, 504 U.S. 428 (1992) (lesser burdens on voting/association analyzed under reduced scrutiny in Anderson‑Burdick sliding scale)
- Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (severity of burden dictates level of scrutiny; severe burdens require narrow tailoring to compelling interest)
- Citizens Protecting Michigan’s Constitution v. Secretary of State, 503 Mich. 42 (2018) (recognition that Legislature may regulate petition procedures but not unduly burden self‑executing provisions)
- Woodland v. Michigan Citizens Lobby, 423 Mich. 188 (1985) (Article 2 §9 construed as self‑executing and limiting legislative authority)
- Wolverine Golf Club v. Secretary of State, 24 Mich. App. 711 (1970) (self‑executing constitutional provisions cannot be curtailed by supplemental legislation)
- Hamilton v. Secretary of State, 227 Mich. 111 (1924) (same principle regarding legislative encroachment on self‑executing constitutional rights)