Sept. 9, 2022 | This Week in Government: Supreme Court Certifies Ballot Petitions

The Michigan Supreme Court, in a 5-2 decision Thursday, ordered the Board of State Canvassers to certify the Reproductive Freedom for All constitutional amendment, allowing it to appear on the November ballot.

The canvassers deadlocked 2-2 on the proposal late last month after a challenge said it lacked spaces between several passages that made it confusing and nonsensical.

Republican-nominated Justice Elizabeth Clement joined her Democratic-nominated colleagues Chief Justice Bridget McCormack, Justice Elizabeth Welch, Justice Megan Cavanagh, and Justice Richard Bernstein in Reproductive Freedom for All v. Board of State Canvassers (MSC Docket No. 164760), ordering the members of the board to certify the proposal.

Justice Brian Zahra and Justice David Viviano, the other two GOP-nominated judges, dissented.

The order says the board’s duty when it comes to petitions is “limited to determining the sufficiency of a petition’s form and content and whether there are sufficient signatures to warrant certification,” citing a 2012 opinion in Stand up for Democracy v. Secretary of State.

With there clearly being enough signatures, the only challenge was the question of if there were enough space between certain words in the text of the proposed amendment, the order says.

“The ‘full text’ of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain, and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them,” the order states. “Assuming that the challengers’ objection to the spacing represents a challenge to the ‘form’ of the petition that the board properly considered, the petition has fulfilled all statutory form requirements, and the board thus has a clear legal duty to certify the petition.”

McCormack and Bernstein wrote separate concurring opinions. McCormack noted that 753,759 voters signed the petition, “more than have ever signed any proposal in Michigan’s history.” She wrote the challengers did not produce a single signer who was confused by the spacing, but still, two members of the Board of State Canvassers would block the proposal from the ballot.

“They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad,” she wrote. “What a sad marker of the times.”

Zahra, in dissent, wrote he would have liked the time to have oral arguments on if “full text,” as used in Michigan’s law regarding ballot initiatives, includes the spacing missing from the abortion proposal. But, if he had to decide without oral arguments, he would say it does.

“As a wordsmith and a member of Michigan’s court of last resort, a court that routinely scrutinizes in great detail the words used in statutes and constitutional provisions, I find it an unremarkable proposition that spaces between words matter,” he wrote. “Words separated by spaces cease being words or become new words when the spaces between them are removed.”

To this, Bernstein, in a footnote of his concurrence, wrote: “As a blind person who is also a wordsmith and a member of this court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me.”

Zahra also urged the Legislature to require the Board of State Canvassers to certify proposals at least six weeks for ballots must be finalized to give the court time to consider legal questions that arise.

In Viviano’s dissent, he wrote, similarly, that without spaces in question, the amendment language did not include the “full text” as required by law.

“Without analysis or citation of legal authority, the majority order summarily concludes that a ‘full text’ exists when all the words of the amendment appear in the correct order on the page. These may be essential ingredients of the ‘full text,’ and they may, at least in some circumstances, be sufficient to prevent the text from being undecipherable,” he wrote. “But they certainly do not represent all that is required for text to meaningfully communicate to the reader. For well over a thousand years, we have conveyed thought and meaning by using spaces between words.”

Citizens to Support Michigan Women and Children, the opposition group that brought the challenge, said voters must now reject Proposal 22-3 at the ballot in November.

“It falls to voters now to reject this mistake-ridden, extreme proposal on Election Day. We are confident that a majority will say No to Proposal 3. It authorizes abortions up until the moment of birth, while sweeping away every law designed to impose common sense limits on abortions, such as parental consent, and health and safety regulations on abortion clinics,” Christen Pollo, spokesperson for the group, said in a statement. “This would become part of our Constitution permanently, and no matter how much it endangered the health and safety of our children, we’d be stuck with it. We urge voters to say No on Nov. 8th.”

Darci McConnell, spokesperson for Reproductive Freedom for All, said the proposal would nullify the 1931 law banning abortion in the state. The group has said it would not nullify other laws, such as parental consent.

“We are energized and motivated now more than ever to restore the protections that were lost under Roe,” McConnell said in a statement. “This affirms that more than 730,000 voters read, signed, and understood the petitions and that the frivolous claims from the opposition are simply designed to distract from our effort to keep the abortion rights we had under Roe for nearly 50 years.”

The Board of State Canvassers is scheduled to meet at 10 a.m. on Friday.

Several groups, including the Michigan Democratic Party, praised the Michigan Supreme Court’s 5-2 decision Thursday that ordered the Board of State Canvassers to certify the ballot language for an amendment that would expand voting rights in the Michigan Constitution.

In an unsigned order, the high court’s majority of Chief Justice Bridget McCormack, Justice Richard Bernstein, Justice Megan Cavanagh, Justice Elizabeth Clement, and Justice Elizabeth Welch ruled that the challenge to the petition in Promote The Vote v. Board of State Canvassers (MSC Docket No. 164755) did not rise to the level of an issue that would keep it off the ballot. The challenge stated that the petition language did not detail all the sections in the Constitution that would be “abrogated” if it passed.

Justice Brian Zahra wrote a dissenting opinion that was joined by Justice David Viviano.

Republican members of the board had last month protested to the certification of the ballot language, and the board deadlocked on certifying the petition in a 2-2 vote.

In its opinion, the high court noted that it was undisputed that there were enough signatures collected to put the petition language on the ballot and that the only challenge was that it failed to include all of the abrogated provisions in the proposed amendment.

“We conclude that the proposed amendments would not abrogate any of the constitutional provisions identified by the challenger,” the opinion says. “The Board thus has a clear legal duty to certify the petition.”

In a concurring opinion, McCormack agreed with the majority but wrote separately to chide the board for acting outside of its scope and role of certifying petitions, candidates, and election results.

“I write separately to address one issue that ought to be clear but apparently isn’t – the board’s role in certifying petitions is very limited,” the chief justice wrote. “The board’s duty is to determine whether a petition has sufficient signatures and whether its form complies with statutory requirements. Absent an insufficient number of signatures or a petition form that doesn’t comply with unambiguous statutory requirements, the board lacks the authority to refuse to certify a petition. Because the challenger here alleged neither of those defects, the board had a duty to certify the petition.”

In a footnote, McCormack also said she disagreed with part of a 2012 opinion from former Justice Mary Beth Kelly in Stand Up For Democracy v. Secretary of State, which found that the board’s duty with respect to referendum petitions was limited to determining the sufficiency of the petition’s form and content, as the statutes cited in that opinion only address the form and sufficiency aspect. It was the current chief justice’s view that the statutes authorize the board to also make determinations on the content of petitions.

She went on to say that the board’s latest actions and its failure to certify the petition at hand were “disappointing evidence of the weakened state of our polity.”

Bernstein also wrote a concurring opinion, noting that while a writ of mandamus was an extraordinary remedy, he voted to grant it on Thursday because of his “consistent belief in the importance of elections in our representative democracy.”

“I believe that my long-expressed interest in letting the people of Michigan make their own decisions at the ballot box speaks for itself,” Bernstein wrote while also meticulously quoting each of his former dissents or concurrences in which he favored candidates and petitions being placed on the ballot in the past, including his dissenting opinions when several gubernatorial candidates were kept off the ballot this year. “Accordingly, I join this Court’s decision to grant mandamus relief.”

He also noted that his vote, in this case, was in line with his separate statement in the court’s Thursday order and opinion in Reproductive Freedom For All v. Board of State Canvassers.

Welch also wrote a concurring opinion that was noticeably lengthier than her Democratic Party-nominated colleagues in McCormack and Bernstein. She asserted that the board had preliminarily approved the form and content of the petition prior to it being circulated starting in February. She notes that the preliminary approval was not challenged in court then.

She also echoed the majority opinion that it was undisputed that Promote the Vote collected the requisite number of signatures to warrant certification. Thus, she disagreed with the crux of the challenge.

In a footnote, the justice said she joined McCormack in questioning whether the board has any legal authority to consider and resolve republication challenges as a part of its duty to review the form of the petition under state election law. More specifically, she wrote that “while this court’s authority to resolve legal disputes concerning alleged republication defects is clear, the scope of the board’s authority to withhold certification because of an alleged republication defect is debatable.”

In dissent, Zahra wrote that the language would prohibit the Legislature from enacting a law that would deny a qualified elector the right to vote while noting that Michigan Constitution Article II, Section 2 provides otherwise, stating that the Legislature may exclude some persons from voting because of mental incompetence or incarceration in a jail or a state correctional facility.

The challengers, he wrote, argued that the latter provision conflicts with the letter of Michigan’s Constitution, and the plaintiffs, in response, argue that since only qualified electors have the fundamental right to vote, such a law excluding people from voting means taking away a fundamental right.

“The flaws in this argument are apparent. It is hard to think of a more wholesale deprivation of a right than excluding a person from the class of persons entitled to claim that right in the first place,” he wrote. “It would be quite a stretch to conclude that the Legislature can enact a law that strips a person of the status needed to exercise a right without ‘denying, abridging, [or] interfering with’ that right. Simply stated, while Article II, Section 2 allows the Legislature to exclude certain qualified electors from voting, the proposed constitutional amendment would prohibit the Legislature from doing just that.”

The two provisions, he added, cannot be read “harmoniously,” as the adoption of proposed Article II, Section 4(1)(a) would render Article II, section 2 “wholly inoperative.”

“Accordingly, the text of Article II, Section 2 was required to be published in plaintiff’s petition,” he wrote.

He argued further that the preapproval of the petition by the Board of State Canvassers did not bar a challenge to the form or content of the plaintiff’s petition at that stage of the process.

He also renewed his call to have the Legislature amend state election law to provide more time between the certification of candidates and policy questions to be placed on the general election ballot and the date by which the ballot must be finalized and sent for production.

“This year is not an anomaly. In the past decade, the people of Michigan have increasingly exercised their right to direct democracy through proposals to enact legislation and amend our Constitution,” he wrote in summation. “With each such proposal there are unique and complex legal challenges that require in-depth development and thoughtful review by this court. Legislation to provide this court at least six weeks between the certification of the ballot by the Board of State Canvassers and the date by which the ballot must be finalized should be enacted before the 2024 primary and general elections.”

A deluge of praise flowed from the groups that spearheaded and supported the voting rights petition.

“We applaud the Michigan Supreme Court for seeing through the baseless and ridiculous claims of our opposition and holding that the voters of Michigan should have the opportunity to make their voices heard on this important issue,” said Khalilah Spencer, board president for Promote the Vote 2022, in a statement. “This important ballot initiative will help ensure that every Michigan voter’s voice is heard and that every vote is counted in every election, no matter where you live, what you look like or what political party or candidate you support. Now that we are on the ballot, we look forward to the next phase of the campaign where we will be encouraging Michigan voters to vote yes on Proposal 2.”

Michigan Democratic Party Chair Lavora Barnes also joined the chorus of those happy to see the initiative make the ballot.

“Today’s Michigan Supreme Court ruling is a win for democracy. Thousands of Michigan voters signed valid petitions supporting the PTV 2022 ballot initiative, and I’m glad their voices will be heard this November,” Barnes said in a statement. “Voting is the foundation of our democracy, and the Michigan Democratic Party will continue to support and advocate for fair access and participation in our free and fair elections.”

The Michigan Republican Party, however, was not among those looking forward to the decision, and had just before its release called the proposal “dangerous” and specifically called out Bernstein to recuse himself from the case.

“With the Michigan Supreme Court decision on the dangerous Promote the Vote election initiative looming, we hope Richard Bernstein – whose family has donated $50,000 to the very same cause – has chosen to recuse himself from participating in this case,” the party wrote in a tweet.

Legislation ‘that would allow communities to set up solar energy districts drew mostly positive testimony before a Senate panel Wednesday, with one local government group expressing some remaining concerns it would like to see addressed before a final bill sees a vote.

Most of the supporting testimony before the Senate Energy and Technology Committee for SB 1106 and SB 1107 centered on what groups called certainty for taxation for local governments and utilities.

Judy Allen, director of government relations for the Michigan Townships Association, said now the group is neutral on the bills after being strongly opposed to an earlier version of the proposal. That proposal was vetoed by the governor last session.

The current proposal is the product of nearly two years of stakeholder meetings, including utility groups, renewable energy groups, local government groups, and state officials.

“Our key elements are to ensure that both zoning is retained and that there’s optionality that exists on both sides,” Allen said. “We want to make sure that this is discretionary and it’s a balanced approach across the board from both sides, to developer, utilities on one side, or the municipalities on the other side.”

As introduced, SB 1106 would create a Solar Energy Facilities Taxation Act under which qualified facilities located within a district in a city, village, or township would be those that, through solar energy, produce at least 2 megawatts of power.

A public hearing process would be required prior to the local government body passing a resolution establishing a solar energy district. The bill also outlines a process for applying for a solar energy exemption certificate related to payment in lieu of taxes.

Under SB 1107, solar energy facility exemption certificates would be added to the list of items exempted from taxes, not including the land where the facility is located during the period in which the certificate is in effect, for up to 20 years.

Once a facility is completed, and in operation, the solar energy facilities tax would be set at $7,000 per megawatt. A cap of $2,000 per megawatt would be set for facilities located in certain locations, including state land, brownfield sites, and Opportunity Zones.

Ms. Allen said one concern for MTA is the increase in large-scale battery storage, including fire protection and health issues from batteries located on sites.

An S-1 substitute for SB 1106 was adopted Wednesday, making several changes that were agreed upon in negotiations with MTA. These include provisions allowing for local governments to have 60 days to advise an applicant of an incomplete application and then 60 days for the applicant to respond.

Under the bill, the 90-day period in the legislation for approval or rejection of an application would be reset and tolled once a local clerk is notified of a deficiency in an application until all the required information is provided to the local government.

Ms. Allen said the 90-day window provided to local governments to make a decision is a concern.

“It’s a very tight window for a local unit to get this application and go through the process on the tax side of it,” Allen said.

As to large-scale solar battery concerns, Allen said it is important to know the value of the equipment so that local governments have that information when deciding which type of taxation they will pursue. The value could be different depending on its components, and whether the batteries are standalone versus being a part of a solar facility, she added.

Supporters of the proposal told committee members the changes would provide stability and certainty to local governments regarding the level of tax revenues to expect from green energy projects and allow them to plan for such projects in their budgets.

Sen. Curt VanderWall (R-Ludington), sponsor of SB 1106, was among those touting a stable tax revenue claim in promoting the legislation.

“I feel these bills will create a solid framework that will help us in further development of solar energy production in Michigan, while creating a standard taxation structure that is acceptable for companies as well as local governments,” VanderWall said.

Brian VanBlarcum, senior tax manager at Consumers Energy Company, agreed, calling the proposed system fair and balanced.

“We need to make sure that not only are we keeping energy prices competitive. We need to look forward to creating energy jobs and solar investments in the state and at the same time providing an adequate source of revenue to our host communities,” VanBlarcum said.

Committee chair Sen. Dan Lauwers (R-Brockway) said he plans to report the bills at the panel’s next hearing.

The Michigan Reformatory in Ionia and four units at Gus Harrison Correctional Facility in Adrian will cease operations in November due to declining prisoner populations.

Ionia has four prisons, and because of the high number of correctional officer vacancies among the facilities, closing the Reformatory will reduce the need for mandated overtime at the three remaining facilities. The Department of Corrections expects that those working in other positions at Reformatory will have opportunities to continue working in the department Corrections Director Heidi Washington said.

“While these announcements are normally and understandably difficult on staff, in this instance we know it may be welcome news to many,” Washington said in a statement. “This will provide much-needed relief to our officers, nurses and other employees who have worked significant overtime shifts over the past few years.”

Consolidating the units in Adrian will allow staff in the four remaining open units on the south side of the facility to work on the north side of the facility and will eliminate the officer vacancies there.

There are enough officer vacancies among the other three facilities to absorb all the current officers at Reformatory, the Department of Corrections said in a press release.

“Today’s announcement will not only provide relief to so many of our employees but is a sign of our continued success,” Washington said. “When you couple that with the lowest recidivism rate in state history, we are able to take these significant steps that help our staff, allow us to still provide exceptional public safety, and continue to be good stewards of taxpayer resources.

The state’s prison population is currently 32,000, the lowest in more than 30 years. Michigan’s prison population peaked in March 2007 at 51,554. Michigan’s recidivism rate has dropped from nearly 45 % to just 23.6% over the last 20 years, reflecting a significant decrease in the number of violations and new crimes committed by those on parole. Michigan now ranks in the top five nationally for its recidivism rate, the department says.

The department will begin working immediately with the employees, their union leadership, and the Office of State Employer on bumping chains and transfer options for employees.

House Appropriations Committee Chair Rep. Thomas Albert (R-Lowell) criticized the prison closures in a statement on Wednesday.

“Ionia has been a corrections community for roughly 150 years. It makes way more sense to consolidate prisons operations in central locations, like Ionia, to lower costs. Closing a prison in a community with a strong employee pipeline and infrastructure in place is a strategic mistake,” Mr. Albert said. “It doesn’t make sense to close a prison here, but sadly, the governor has a history of hurting Ionia’s economy. In 2019, she blocked plans to sell and redevelop a vacant Ionia prison site that would have brought the community new and high-paying jobs. This latest bad decision from the Whitmer administration will do even more damage to Ionia and the families that call it home.”

Prisoners at Reformatory and the four units at Gus Harrison will be moved to other prisons with available bed space.

Two senators have teamed up to introduce a pair of bipartisan bills intended to help improve access to affordable housing for residents, something both said has become more difficult for people to obtain statewide in recent years.

In a Tuesday release, Sen. Stephanie Chang (D-Detroit) and Sen. Curt VanderWall (R-Ludington) said their proposed legislation would change laws governing community land trusts.

Community land trusts are local nonprofits that work to use the land for various types of development, most frequently affordable housing.

Tuesday’s release pointed out that one problem with community land trusts is that the land the nonprofits oversee is taxed like other land because the land is leased to a private organization. Those taxes are still passed on to the homeowner.

In the release, the pair added that residential improvements to such housing are also taxed at full market value, which makes underwriting a community land trust mortgage more difficult.

The intent of SB 1141 and SB 1142, which have yet to be formally introduced in the Senate, the lawmakers said, is to make accessing such options for housing easier. Under the first bill, the tax credit for a homeowner through a community land trust would be equal to all taxes owed on the leased land and up to 25% of the taxes owed on the residential structure.

Chang, in a statement, said Detroit has faced a housing crunch in recent years, making housing unaffordable for many. Thus, finding solutions to the problem was critical.

“My legislation builds upon the ingenuity that community land trust programs bring to the table by offering a refundable income tax credit for homeowners who are still required to pay property taxes on the land they are leasing,” Chang said. “This will help grow our CLT programs in the state and help residents across the state struggling with housing.”

VanderWall agreed, adding that in northern communities where the tourism season is a huge part of life, affordable workforce housing is hard to come by and can lead to workforce shortages.

Under SB 1142, the state would be able to remit the amount of the homeowner tax credit directly to the homeowner’s local tax collecting unit, exchanging this for a reduced tax levy. VanderWall said this would allow lenders to reduce monthly escrow payments for homeowners under such programs and underwrite the mortgage with the reduction.

Another provision for the land lease would be that when a home is resold, the homeowner will receive all the equity they put into the home except for a percentage of its appreciation value.

“We need to explore creative solutions like this to lower housing prices not just for these seasonal workers, but for families who live here year-round,” VanderWall said.