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Benson Wants Nessel’s Opinion On Lame Duck Petition Drive Changes

January 30, 2019

Secretary of State (SOS) Jocelyn Benson Tuesday asked Attorney General Dana Nessel to opine on the constitutionality of the law passed in lame duck that set limits, per congressional district, on signatures gathered for citizens’ initiatives.

Among other provisions, HB 6595 limits petition circulators from collecting more than 15 percent of their total signatures from any one congressional district. It was signed into law by former Gov. Rick Snyder.

The law, sponsored by Rep. James Lower (R-Cedar Lake), stipulated any signatures collected in a congressional district above the threshold couldn’t be counted, although circulators could still submit more than the 15 percent threshold per district.

Supporters had said the threshold is important to ensure support across the state for petition drive issues, instead of letting circulators load up on signatures from a certain area of the state.

John Bursch, the former state solicitor general, said last week “virtually every state” that has the power of initiative has some sort of “distribution requirement.”

While some of those requirements have been struck down, Bursch said that’s happened regarding requirements set by counties. But for congressional districts, Bursch knows of no adverse court ruling in the country against such a requirement.

Bursch defended the bill on behalf of the West Michigan Policy Forum and other business interests that backed the proposal when it was up in committee. Bursch said he was brought on by the West Michigan Policy Forum to look at the bill, which he was told was a “top priority” for them.

But opponents of HB 6595 said the requirements would make it difficult to run a petition drive and track where all the signatures are coming from. The law requires the petition drive organizers to sort its signatures by congressional district, absolving the SOS from doing that.

During committee hearings, the bill drew opposition from across the political spectrum, including from Right to Life of Michigan and Patrick Anderson, to the ACLU, AFSCME and AFL-CIO.

Benson said last week she’s “deeply concerned” the “restrictions” enacted in HB 6595 “may potentially violate those constitutional rights by adding new burdens and restrictions on the process.”

Nessel’s office issued a statement last week that said Benson “rightly” contested the petition drive law, now known as Public Act (PA) 608 of 2018, and “welcomed” the request.

“Restricting the right of Michiganders to participate in the political process is a serious subject matter,” Nessel said in a statement. “PA 608 puts a limit on the peoples’ voice and that is cause for great concern — something a rushed lame-duck Legislature failed to regard in passing this law.”

As she announced when she received an opinion request from Gov. Gretchen Whitmer on the Line 5 tunnel bill, Nessel invited “interested or concerned parties” to forward a brief or legal memo on the issues raised by the request.

Lower last week said he wasn’t shocked Benson asked for an AG opinion. He said both internal and external counsel — Bursch — looked at the bill and gave it the all-clear on constitutionality. It was introduced Dec. 6 and presented to the Governor by Dec. 28.

“I’d love for her to conclude the same thing that I have . . . I’m not, you know, going to hold my breath on that,” Lower said, when asked if he sees Nessel ruling the bill anything but unconstitutional, who added he’d be “more than willing” to lead the fight to defend the law if it is deemed unconstitutional.

An AG opinion is binding on state agencies, unless and if a court overturns it.

Benson’s request to Nessel asks for an opinion on the congressional district cap on signatures, noting in her letter the state constitution “does not require the sponsor of an initiative, referendum or constitutional amendment petition to obtain signatures from any particular region of the state, nor allow for the rejection of excess signatures gathered in any particular electoral district.”

The SOS also asked the AG about:

– The penalties associated with circulators who provide a false address, information or statement, which risks the rejection of the “otherwise valid petition signatures” and the prosecution of a misdemeanor offense.

There was a concern raised on this point that invalidating the signatures collected by a fraudulent petitioner would punish the voters who signed the petition.

Bursch said the penalty in question is another “very common provision” carried by other states with initiative processes, adding he’s not aware of a court striking down any such provision.

– The requirement for anyone who wants to challenge the Board of State Canvassers’ action on a petition to file directly to the Michigan Supreme Court within seven days.

Bursch said states have “great leeway” in regulating the timelines for the cause of action. And while he acknowledged seven days is “quick,” he also said it’s “not unreasonable.”

– The requirement for paid circulators to file an affidavit with the SOS.

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