Senate v. Secretary of State

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LEAGUE OF WOMEN VOTERS OF MICHIGAN, FOR PUBLICATION
MICHIGANDERS FOR FAIR AND January 27, 2020
TRANSPARENT ELECTIONS, HENRY MAYERS, 9:00 a.m.
VALERIYA EPSHTEYN, and BARRY RUBIN,
Plaintiffs-Appellants,
v No. 350938
Court of Claims
SECRETARY OF STATE, LC No. 19-000084-MM
Defendant-Appellee.
SENATE and HOUSE OF REPRESENTATIVES,
Plaintiffs-Appellants,
v No. 351073
Court of Claims
SECRETARY OF STATE, LC No. 19-000092-MZ
Defendant-Appellee.
Before: SERVITTO, P.J., and BOONSTRA and GADOLA, JJ.
SERVITTO, P.J.
In these consolidated appeals, plaintiffs in both cases appeal as of right a September 27,
2019 opinion and order of the Court of Claims which addressed two central issues: the
constitutionality of certain provisions of 2018 PA 608 and whether or not the Senate and House
of Representatives had standing to seek to uphold the constitutionality of a validly enacted
statute. We affirm in part and reverse in part.
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I. FACTS AND PROCEDURAL HISTORY
On December 28, 2018, 2018 PA 608 was signed into law. This public act amended the
Michigan election law in several respects. First, the act amended MCL 168.471, governing
petitions that propose an amendment to the Michigan Constitution, initiative petitions, and
referendum petitions. Prior to amendment, this statute generally set forth the number of
signatures that had to be obtained on the petitions and set forth timing requirements for filing the
petitions. One of the features of 2018 PA 608 was to add a geographic requirement—limiting
the total number of signatures to be used to determine the validity of a petition to no more than
15% from one congressional district.1 Signatures in excess of the 15% would not be counted.
Additionally, when filing petitions as provided for in that statute, submitters would be required to
sort the signed petitions by congressional district and include a good faith estimate regarding the
number of signatures from each district.
Second, the act amended MCL 168.477, governing the sufficiency of a petition. 2018 PA
608 added a requirement that, when the Board of State Canvassers is making an official
declaration of the sufficiency or insufficiency of an initiative petition, it may not count toward
the sufficiency of the petition any valid signature of a registered elector from a congressional
district submitted on that petition that is above the 15% limit described in MCL 168.471.
Third, the act amended MCL 168.482. 2 This statute previously addressed only the
format and content of acceptable petitions. The amendment requires sponsors of ballot petitions
to gather signatures on forms designated by congressional district, rather than by county, the
designation previously used. The amendment further adds several parts which require paid
petition circulators,3 before gathering signatures, to file an affidavit with the Secretary of State
(the Secretary) disclosing their non-volunteer status,4 mandates that new petition forms contain a
check-box for a circulator to indicate whether they are a paid circulator,5 and requires petition
forms to contain a statement that, if a petition circulator fails to comply with the requirements, all
signatures obtained by that circulator are invalid and will not be counted.6 In addition,
1
Michigan is divided into 14 congressional districts. House.gov/representatives#state-michigan
(accessed 01/016/2020). All congressional districts span multiple counties except one: only
District 13 involves a single county, the County of Wayne. See 2011 PA 128.
2
PA 608 made other substantive changes to the Michigan election law, but those changes have
not been challenged in this appeal, so they are not detailed here.
3
The statute defines a “paid signature gatherer” as “an individual who is compensated, directly
or indirectly, through payments of money or other valuable consideration to obtain signatures on
a petition as described in section 471.” MCL 168.482d.
4
MCL 168.482a(1).
5
MCL 168.482(7).
6
MCL 168.482(8).
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circulators who provide false information relating to their status as a paid circulator would be
subject to criminal prosecution for a misdemeanor.7
On January 22, 2019, the Secretary, who is the chief election officer of the state and has
supervisory authority over local election officials,8 asked Michigan Attorney General Dana
Nessel for a formal opinion regarding the constitutionality of PA 608 because it added new
provisions regarding the invalidation of petition signatures that would have been considered
lawful under the prior law. By statute, the Attorney General gives opinions on questions of law
posed by state officers. See MCL 14.32.
Relevant to the instant appeals, the Secretary inquired about the constitutionality of PA
608’s cap at 15% on the number of signatures allowable per congressional district, the
requirement for submitters to sort petitions by congressional district, and the obligation for
submitters to include a good faith estimate of the number of signatures. The Secretary also asked
whether the requirements for paid signature gatherers to file an affidavit before circulating
petitions and a disclosure on the face of the petition that a circulator is paid were constitutional,
and whether she retained the authority to set forth the petition form for statewide ballot proposals
in light of PA 608’s mandate that sponsors use a congressional district form rather than a
countywide form.
On May 22, 2019, the Michigan Attorney General issued Attorney General Opinion No.
7310. In the opinion, the Attorney General stated that the 15% geographic requirement based on
congressional districts violates the petition and amendment provisions of the state Constitution,
neither of which limit the number of signatures collected from one geographic region. She also
opined that the requirement for circulators to indicate on petitions whether they were paid did not
further any asserted governmental interest and exposed the circulators to the risk of “heat of the
moment” harassment, such that it was unconstitutional. The Attorney General additionally stated
that no state interest was apparent regarding why the Secretary would need to receive an affidavit
from the circulator regarding their paid status, particularly where the petitions will contain
circulators’ addresses, and thus concluded that the affidavit requirement was not substantially
related to Michigan governmental interests and was unconstitutional. The Attorney General
concluded that the following sections that were unconstitutional could be severed from the
remainder of the act:
1. The portions of MCL 168.471, 168.477, and 168.483(4) involving the
15% geographic requirement;
2. MCL 168.482(7), 168.482c regarding the check-box requirement; and
3. MCL 168.482a(1),(2) involving the pre-circulation affidavit.
7
MCL 168.482c.
8
MCL 168.21. See also Const 1963, art 5, § 3.
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On May 23, 2019, plaintiffs, League of Women Voters of Michigan, Michiganders for
Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin,
(collectively, “League of Women Voters”) filed a complaint in the Court of Claims against the
Secretary for declaratory and injunctive relief. In their complaint, plaintiffs asserted that the
15% cap per congressional district on petition signatures is an unconstitutional effort to amend
the constitution by legislation, violates the constitutional rights of free speech and association,
and violates the right to petition. They further asserted that invalidation of signatures for
technical circulator errors or omissions violates the same constitutional rights with respect to
petition proponents and signers, and also violates due process. These plaintiffs thus sought a
declaration that the challenged provisions of 2018 PA 608 are unconstitutional and additionally
sought a permanent injunction barring defendant and her agents, officers, and employees from
enforcing or giving any effect to the challenged provisions.
On June 5, 2019, the Michigan Senate and Michigan House of Representatives (the
Legislature) also filed a complaint in the Court of Claims for declaratory and injunctive relief
against the Secretary. These plaintiffs challenged the May 22, 2019 opinion of the Attorney
General finding certain provisions of 2018 PA 608 unconstitutional, and sought declarations that
2018 PA 608 is constitutional and a valid exercise of the Legislature’s authority, and that the law
must be implemented and enforced by the Secretary.
The plaintiffs in both cases filed motions for summary disposition in July 2019. The
League of Women Voters moved for summary disposition in its action against the Secretary
pursuant to MCR 2.116(C)(10), asserting that there is no genuine issue of material fact that 2018
PA 608 is unconstitutional in several respects. The Legislature likewise moved for summary
disposition pursuant to MCR 2.116(C)(10), contending that there is no genuine issue of material
fact that 2018 PA 608 is presumptively constitutional and further withstands any challenges to its
constitutionality.
The Court of Claims consolidated the cases. In a July 29, 2019 order, the Court of
Claims also ordered that any parties in either of the two cases before it, for purposes of judicial
economy and the avoidance of unnecessary costs and duplication of effort, “shall be permitted to
file motions and papers, argue in hearings, and otherwise participate in either of the consolidated
cases, subject to any further orders of the Court.” The League of Women Voters thereafter filed
a second motion for summary disposition, this one against the Legislature pursuant to MCR
2.116(C)(6) and (10). The League of Women Voters asserted that the Legislature lacked
standing to sue in the matter and that there was no genuine issue of material fact that 2018 PA
608 is unconstitutional.
After a hearing on all summary disposition motions, the Court of Claims issued a single
opinion and order addressing all of the issues raised in both matters. At the outset, the Court of
Claims determined that the Legislature had no standing to sue because it had not demonstrated a
particularized injury that would be detrimentally affected in a manner different from the citizenry
at large as is required to pursue its complaint, and that its complaint in Docket No. 19-000092-
MZ must therefore be dismissed. The Court of Claims, however, treated the papers submitted by
the Legislature as amicus briefs in the matter initiated by the League of Women Voters.
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The Court of Claims next determined that the 15% geographic limit set forth in 2018 PA
608 is unconstitutional on its face. The Court of Claims reasoned that the Michigan Constitution
contains a self-executing provision which reserves the power of the initiative and referendum
process to the people, and the state Constitution establishes requirements in terms of the number
of signatures needed to invoke the respective processes—without any limits on where those
signatures can be gathered. The Court of Claims opined that the Legislature was not permitted to
impose additional obligations or undue burdens, such as the 15% geographic limit, on the self-
executing constitutional provision governing the initiative and referendum process. The Court of
Claims reached a similar conclusion with respect to the right of the citizenry to petition for
constitutional amendment. The Court of Claims further found that the 15% requirement in MCL
168.471 and other provisions in 2018 PA 608 relying on the 15% geographic requirement (MCL
168.477(1) and MCL 168.482(4)) could be and would be stricken from 2018 PA 608, and that
the remainder of the act remained enforceable.
Next, the Court of Claims found that the requirement imposed on paid petition circulators
in MCL 168.472(7) (requiring paid petition circulators to disclose their paid status on the face of
petition sheets circulated to potential petition signers) does not substantially relate to a
sufficiently important governmental interest and is thus unconstitutional on its face. The Court
of Claims also found that this provision was severable from the remainder of 2018 PA 608.
The Court of Claims also found that MCL 168.482a, which requires paid petition
circulators—but not volunteers—to file signed affidavits with the Secretary indicating that they
will be paid to circulate a petition and to gather signatures, is not unconstitutional on its face. It
also found that the signature-invalidating provisions found in MCL 168.482a do not violate
petition signers’ rights of free speech and free association, nor do they violate due process
because they are content-neutral, nondiscriminatory, and represent merely a check imposed by
the state on the integrity of the petition process.
In sum, the Court of Claims ordered that the League of Women Voters was entitled to
summary disposition in the case they initiated with respect to their requests for declaratory relief
that: (1) the 15% geographic requirement in MCL 168.471 is unconstitutional—as are the
sections of PA 608 related to the 15% requirement and/or congressional districts, see MCL
168.477(1) and MCL 168.482(4); and (2) the check-box requirement in MCL 168.472(7) is
unconstitutional. It ordered, however, that declaratory relief would not be entered in favor of the
League of Women Voters concerning whether the affidavit requirement in MCL 168.482a(1) is
unconstitutional on its face. The Court of Claims further granted summary disposition in favor
of the Secretary in that matter with respect to whether the signature-invalidation requirements
contained in MCL 168.482a are unconstitutional. Finally, the Court of Claims dismissed the
Legislature’s complaint due to its lack of standing.
Appeals ensued in both cases and this Court consolidated the matters for review. League
of Women Voters of Michigan v Secretary of State; Senate v Secretary of State, unpublished
order of the Court of Appeals, issued November 8, 2019 (Docket Nos 350938, 351073). This
Court further allowed appellants in both cases to file briefs, motions, and other filings as if they
were appellees in the others’ appeals (League of Women Voters of Michigan v Secretary of State;
Senate v Secretary of State, unpublished order of the Court of Appeals, issued December 19,
2019 (Docket Nos. 350938, 351073) and ordered that the appeals would be decided on the briefs
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filed, without oral argument, unless otherwise ordered. League of Women Voters of Michigan v
Secretary of State; Senate v Secretary of State, unpublished order of the Court of Appeals, issued
December 20, 2019 (Docket Nos. 350938, 351073).
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision regarding a motion for a summary
decision in a declaratory relief action. See Michigan Ed Employees Mut Ins Co v Turow, 242
Mich App 112, 114; 617 NW2d 725 (2000). The constitutionality of a statute presents a question
of law, which also carries a de novo standard of review. GMAC LLC v Treasury Dep’t, 286
Mich App 365, 372; 781 NW2d 310 (2009). And whether a party has standing is also a question
of law subject to review de novo. Groves v Dept of Corr, 295 Mich App 1, 4; 811 NW2d 563
(2011).
III. STANDING
On appeal, the Legislature contends that it has standing to pursue a declaratory judgment
in these matters because it has an interest in having this Court uphold the legislation it has
passed, has a real interest in the cause of action, and will be a vigorous advocate. Moreover, the
Legislature asserts that it has a special right and substantial interest that will be detrimentally
affected in a manner different than the citizenry at large. We disagree.
As an initial matter, this Court has jurisdiction over appeals by right “filed by an
aggrieved party.” MCR 7.203. Black’s Law Dictionary (11th ed) defines “aggrieved party” as “a
party entitled to a remedy; esp. a party whose personal, pecuniary, or property rights have been
adversely affected by another person’s actions or by a court’s decree or judgment.” “To be
aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not
a mere possibility arising from some unknown and future contingency.” Federated Ins Co v
Oakland Co Rd Com'n, 475 Mich 286, 291; 715 NW2d 846 (2006).
Here the Legislature’s arguments were fully considered and addressed by the Court of
Claims, despite its holding that the Legislature had no standing. Indeed, the Legislature was
permitted to file briefs in the League of Women Voters’ case in the Court of Claims and with this
Court. The Legislature did not file a brief specific to the League of Women Voters’ case here,
but its appellant’s brief, which contained both captions and docket numbers, was docketed in the
League of Women Voters’ appeal. The Legislature would thus appear to derive no identifiable
benefit in having this Court reverse the Court of Claims decision on the issue of its standing.
Accordingly, under the unique circumstances of these cases, the Legislature has had the
opportunity to assert its arguments and is not an “aggrieved party” entitled to appeal the Court of
Claims decision as of right under MCR 7.203. In the interest of thoroughness, this Court will
nevertheless address the standing arguments proffered by the Legislature on appeal.
“ ‘Standing is the legal term used to denote the existence of a party’s interest in the
outcome of the litigation; an interest that will assure sincere and vigorous advocacy.’ ” Allstate
Ins Co v Hayes, 442 Mich 56, 68; 499 NW2d 743 (1993) (citations omitted). When standing is
at issue in a case, “the question is whether the person whose standing is challenged is a proper
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party to request adjudication of a particular issue and not whether the issue itself is justiciable.”
Id (quotation marks and citations omitted). “[A] litigant has standing whenever there is a legal
cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is
sufficient to establish standing to seek a declaratory judgment.” Lansing Sch Ed Ass'n v Lansing
Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010). “A plaintiff must assert his own legal
rights and interests and cannot rest his claim to relief on the legal rights or interests of third
parties.” Fieger v Comm’r of Ins, 174 Mich App 467, 471; 437 NW2d 271 (1988). Where a
cause of action has not been provided by law,9 a plaintiff must have “a special injury or right, or
substantial interest, that will be detrimentally affected in a manner different from the citizenry at
large . . . .” Lansing Schools Ed Ass’n, 487 Mich at 372. Thus, a litigant may have standing if
(1) the litigant has a special right that will be detrimentally affected in a manner distinct from the
citizenry at large, or has met the requirements of MCR 2.605 or (2) when the Legislature has
intended to confer standing on the litigant under a particular statutory scheme. Id.
In this matter, the Legislature filed a complaint for declaratory action pursuant to MCR
2.605. That rule provides, in pertinent part, that “[i]n a case of actual controversy within its
jurisdiction, a Michigan court of record may declare the rights and other legal relations of an
interested party seeking a declaratory judgment, whether or not other relief is or could be sought
or granted.” An “actual controversy” under MCR 2.605(A)(1) exists when a declaratory
judgment is necessary to guide a plaintiff's future conduct in order to preserve that plaintiff’s
legal rights. UAW v Cent Michigan Univ Trustees, 295 Mich App 486, 495; 815 NW2d 132
(2012). Where no actual controversy exists, a plaintiff does not have standing to bring a
declaratory action. City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518, 534;
734 NW2d 533 (2007). The plaintiff therefore has the obligation to show that an actual
controversy exists.
Given the definition of “actual controversy” for purposes of MCR 2.605, we are not
convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No
declaratory judgment is necessary to guide the Legislature’s future conduct in order to preserve
its legal rights. UAW, 295 Mich App at 495. The Legislature’s authority to enact laws is
separate and distinct from this Court’s role in determining whether any law passes constitutional
muster. These “rights” and obligations of the two separate branches of government will remain
the same, no matter what the outcome in this matter, such that the preservation of the
Legislature’s legal rights is not at issue.
While the Legislature asserts that it is the only real party in interest in ensuring that
Michigan laws are enforced and upheld when the Attorney General will not do so, and may thus
file a declaratory action pursuant to MCR 2.605, it has provided no authority or support for this
position. This Court need not search for authority to sustain a party's position. Schellenberg v
Rochester Elks, 228 Mich App 20, 49; 577 NW2d 163 (1998). Moreover, we find the
Legislature’s position unavailing.
9
PA 608 does not create a specific cause of action or expressly confer standing on the
Legislature to enforce the act’s provisions.
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Michigan appellate courts have not examined whether the Legislature as a whole has
standing to challenge an Attorney General’s opinion regarding the constitutionality of a statute.
However, our Supreme Court has analyzed the standing issue in relation to individual legislators.
In Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), four legislators challenged
the authority of the State Administrative Board to transfer funds between state departments.
After the Governor asked the House and Senate Appropriations Committees to transfer funds,
but the committees failed to act, the State Administrative Board transferred the funds. Four
individual members of the Legislature, two of whom were members of the House and Senate
Appropriations Committees, and the Speaker of the House and Minority Leader of the Senate,
who selected at least some members of the appropriations committees, brought a declaratory
action, arguing that the statutory authority for the transfer was unconstitutional.
In their complaint, they alleged that the transfer actions of the board reduced their
effectiveness as legislators, nullified the effect of their votes, interfered with the authority of
plaintiffs as members of the House and Senate Appropriations Committees to approve or
disapprove intradepartmental transfers, and diminished the effectiveness of two of the plaintiffs
who, as leaders, appoint members of their party to positions on the respective appropriations
committees. Id. at 554–55. Our Supreme Court noted that to establish standing, a legislator
must overcome a heavy burden because, “Courts are reluctant to hear disputes that may interfere
with the separation of powers between the branches of government.” Id. at 555. Thus, plaintiffs
who sue as legislators must establish that they have been deprived of a personal and legally
cognizable interest peculiar to them, individually, rather than assert a generalized grievance that
the law is not being followed. Id. at 556 (citations and quotation marks omitted).
Our Supreme Court ultimately concluded that only one of the four plaintiffs had shown a
personal and legally cognizable interest peculiar to him because he, as a member of the House
Appropriations Committee, had been deprived of his right to approve or disapprove transfers
made by the State Budget Director. In contrast, the plaintiff on the Senate Appropriations
Committee was without standing, as that committee actually had voted to approve the transfer,
and that plaintiff was not suing regarding the effectiveness of his vote, but rather was suing “to
reverse the outcome of a political battle he lost.” Id. at 561. The Court rejected as without basis
the arguments of the remaining two plaintiffs that the board’s action infringed upon their
authority to appoint committee members and that it affected the Legislature’s power to override a
line-item veto. Id. at 560-561.
Applying the above legal framework to this case, the Legislature has a heavy burden to
show that it has standing. There is no dispute that the Legislature would be a vigorous advocate,
as it asserts. The question, however, is whether it has an interest that is distinct from that of the
general public. Nothing in the text of PA 608 supports that the Legislature has a substantial and
distinct interest in its enforcement.
Attempting to distinguish Dodak, the Legislature argues that it did not lose a political
battle and that it is not suing to reverse a legislative outcome. However, in light of the Attorney
General’s opinion, the Legislature is suing to reverse actions by the Secretary, a member of the
Executive Branch. The Legislature is thus plainly challenging the actions of members of the
Executive Branch. Dodak stands for the proposition that courts should not confer standing in
matters that have the real possibility of infringing upon the separation of powers.
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To accept the Legislature’s argument that it has standing here would open the door for
the Legislature to seek a declaratory judgment whenever the constitutionality of a statute was
challenged. Further, PA 608 was designed not to benefit the Legislature, but to amend the
Michigan election law to set forth new requirements for voter-initiated petitions for ballot
proposals, and to invalidate signatures on noncomplying petitions. The Legislature simply has
not shown that it has a special interest in voter-initiated petitions that differs from the citizenry at
large.
The Legislature argues that it has an interest in upholding the legislation that it has
passed. But here it is the role of the courts, not the Legislature, to determine whether PA 608 is
constitutional. A legal ruling regarding the constitutionality of PA 608’s provisions will not
deprive the Legislature of personal and legally cognizable authority that is peculiar to those
chambers alone. Though the Legislature is essentially asserting that PA 608 was not enforced in
its entirety, that injury is not personal or unique to the Legislature. This is particularly so, given
that once the votes of the legislators have been counted and the statute enacted, “their special
interest as lawmakers has ceased.” See Killeen v Wayne Co. Road Comm’n, 137 Mich App 178,
189; 357 NW2d 851 (1984). Moreover, the validity of any particular legislative member’s vote
is not at issue; the Public Act was duly enacted into law. Rather, here the issue is the
constitutionality of new conditions for filing voter-initiated petitions, and it impacts Michigan
voters who sign petitions.
Relying on our Constitution, the Legislature also argues that it has standing because it has
the “exclusive constitutional authority to regulate elections in the State of Michigan.” See Const
1963, art 2 § 4, and art 4, § 1. While the Legislature is correct that it has certain authority to
regulate elections in Michigan, it fails to acknowledge the people’s authority to bring petitions,
which is also constitutionally based. Const 1963, art 2, § 9; Const 1963, art 12, § 2.10 These
specific constitutional provisions are explored more thoroughly in the next section. Suffice it to
say that we are satisfied that the Legislature did not and does not have standing to bring a
declaratory action in the matters at hand.
IV. CONSTITUTIONALITY OF 2018 PA 608A. 15% GEOGRAPHIC REQUIREMENT
PA 608 amended the Michigan Election Law to add the following 15% geographic limit:
10
While the Legislature also argues that “[l]eaving the Court of Claims Opinion in place will
result in a single member of the executive branch being able to exercise unchecked veto power
over a bill that has already been passed and enacted into law,” the Court of Claims analyzed the
Attorney General’s legal conclusions, this Court scrutinized those conclusions, and presumably,
our Supreme Court will also consider the legal conclusions in the Attorney General’s opinion. In
light of that review process, it cannot be concluded that the Attorney General has “unchecked
veto power” over PA 608.
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Not more than 15% of the signatures to be used to determine the validity of a
petition described in this section shall be of registered electors from any 1
congressional district. Any signature submitted on a petition above the limit
described in this section must not be counted. When filing a petition described in
this section with the secretary of state, a person must sort the petition so that the
petition signatures are categorized by congressional district. In addition, when
filing a petition described in this section with the secretary of state, the person
who files the petition must state in writing a good-faith estimate of the number of
petition signatures from each congressional district. [MCL 168.471.]
PA 608 also amended the Michigan Election Law by indicating that signatures above the 15%
geographic limit will not be counted by the Board of Canvassers:
The board of state canvassers may not count toward the sufficiency of a petition
described in this section any valid signature of a registered elector from a
congressional district submitted on that petition that is above the 15% limit
described in section 471. [MCL 168.477(1).]
In addition, PA 608 requires petitions to indicate in which congressional district the people who
sign the petition reside.
The Legislature argues that the requirements set forth above pass constitutional scrutiny
and are valid means to ensure participation from voters within the entire state. The League of
Women Voters, on the other hand, contends that the 15% cap contained within that statute
violates the self-executing provisions regarding ballot proposals, and violates the rights to free
speech, association, and petition. The Secretary agrees with the League of Women Voters.
In the context of a constitutional analysis, courts generally construe a statute as not
violating the Constitution unless it clearly appears that the statute is unconstitutional. In re Int’l
Transmission Co, 304 Mich App 561, 569; 847 NW2d 684 (2014). “Further, when considering a
claim that a statute is unconstitutional, the Court does not inquire into the wisdom of the
legislation.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 6; 658 NW2d 127 (2003).
There are two general types of constitutional challenges. Whereas an “as applied”
constitutional challenge considers the specific application of a facially valid law to individual
facts, a “facial” constitutional challenge considers the plain language of the challenged provision
(i.e., on its face). In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA
71, 479 Mich 1, 11; 740 NW2d 444 (2007). Because PA 608 has yet to be enforced, the League
of Women Voters’ arguments regarding PA 608 fall within a facial challenge. See, id. A facial
challenge is a claim that the law is “invalid in toto—and therefore incapable of any valid
application . . . .” Steffel v Thompson, 415 US 452, 474; 94 S Ct 1209; 39 L Ed 2d 505 (1974)
(citation and quotation marks omitted). In such a challenge, “[t]he party challenging the facial
constitutionality of an act ‘must establish that no set of circumstances exists under which the
[a]ct would be valid.’ ” Straus v Governor, 459 Mich 526, 543; 592 NW2d 53 (1999) (citation
omitted).
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To determine whether the 15% geographic limit survives a facial challenge, we first look
to the constitutional provision at issue. Const. 1963, art 2, § 9 governs initiative and referendum
providing, in pertinent part:
The people reserve to themselves the power to propose laws and to enact and
reject laws, called the initiative, and the power to approve or reject laws enacted
by the legislature, called the referendum. The power of initiative extends only to
laws which the legislature may enact under this constitution. The power of
referendum does not extend to acts making appropriations for state institutions or
to meet deficiencies in state funds and must be invoked in the manner prescribed
by law within 90 days following the final adjournment of the legislative session at
which the law was enacted. To invoke the initiative or referendum, petitions
signed by a number of registered electors, not less than eight percent for initiative
and five percent for referendum of the total vote cast for all candidates for
governor at the last preceding general election at which a governor was elected
shall be required.
Constitutional initiative and referendum provisions, by which the people reserve to themselves a
direct legislative voice, should be liberally construed to effectuate their purposes. Bingo Coal for
Charity--Not Politics v Bd of State Canvassers, 215 Mich App 405, 410; 546 NW2d 637 (1996).
Significantly, Const. 1963, art 2, § 9 is a self-executing constitutional provision.
Wolverine Golf Club v Hare, 384 Mich 461, 466; 185 NW2d 392 (1971). A constitutional
provision is deemed self-executing, “if it supplies a sufficient rule, by means of which the right
given may be enjoyed and protected, or the duty imposed may be enforced . . . .” Wolverine Golf
Club v Hare, 24 Mich App 711, 725-726; 180 NW2d 820 (1970), aff'd sub nom. Wolverine Golf
Club, 384 Mich 461 (quotation marks and citations omitted). “Whether a constitutional
provision is self-executing is largely determined by whether legislation is a necessary
prerequisite to the operation of the provision.” Id. at 725.
Const. 1963, art 2, § 9 specifically reserves the initiative and referendum power to the
people, and further provides a specific numerical mechanism through which to invoke the
initiative or referendum— by obtaining “petitions signed by a number of registered electors, not
less than eight percent for initiative and five percent for referendum of the total vote cast for all
candidates for governor at the last preceding general election at which a governor was elected . .
.” 2018 PA 608, however, clearly and unequivocally provides an additional requirement in the
form of an obligation to limit signatures from specific geographic locations. “Not more than
15% of the signatures to be used to determine the validity of a petition described in this section
shall be of registered electors from any 1 congressional district.” MCL 168.471. It is settled law
that the Legislature may not act to impose additional obligations on a self-executing
constitutional provision. Soutar v St. Clair County Election Commission, 334 Mich 258, 265; 54
NW2d 425 (1952).
Moreover, legislation supplementary to self-executing constitutional provisions “must be
in harmony with the spirit of the Constitution, and its object to further the exercise of
constitutional right and make it more available, and such law must not curtail the rights reserved,
or exceed the limitations specified.” Wolverine Golf Club, 24 Mich App at 730, citing State ex
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rel Caldwell v Hooker, 22 Okl 712, 718; 98 P 964 (1908). “Any statute which is both
unnecessary for effective administration of the initiative process and restrictive of the initiative
right is unreasonable and thus unconstitutional.” Id. at 735. Here, the 15% limitation is not in
harmony with the spirit of Const. 1963, art 2, § 9, which requires only a specified number of
electors’ signatures on relevant petitions, and limits, rather than furthers the exercise of the
constitutional right, making it less available. It thus curtails the rights reserved.
We recognize that Const. 1963, art 2, § 9 also provides that “[t]he legislature shall
implement the provisions of this section.” The stricture of that section is, however, simply “a
directive to the legislature to formulate the process by which initiative petitioned legislation shall
reach the legislature or the electorate.” Wolverine Golf Club, 384 Mich at 466. The clear intent
in this provision is “to limit the power of the legislature to that which is ‘necessary’ to the
effective implementation of the initiative right.” Wolverine Golf Club, 24 Mich App at 735.
Thus, while the Constitution places the duty of implementation of initiative and referendum
provisions on the Legislature, it does so as an incident to the granting of a right to the people.
Although administrative implementation is needed if the initiative process is to function
smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict
the constitutional right. “The spirit of the Constitution is not met if the rights it grants are
unnecessarily impaired under the guise of implementation.” Id.
Despite the clear limiting intent of the implementation language in Const. 1963, art 2, §
9, the Legislature contends that this provision must be read in conjunction with Const. 1963, art.
2, § 4, and its broad delegation of power to the Legislature. Specifically, the Legislature directs
us to Const. 1963, art 2, § 4(2), which states, in part:
Except as otherwise provided in this constitution or in the constitution or laws of
the United States the legislature shall enact laws to regulate the time, place and
manner of all nominations and elections, to preserve the purity of elections, to
preserve the secrecy of the ballot, to guard against abuses of the elective
franchise, and to provide for a system of voter registration and absentee voting.
The question here, however, is not whether the Legislature has the power to legislate; the
question is whether the restrictions implemented by the legislation constitute an impermissible
burden on the petition processes, the power over which the people reserved for themselves more
than a century ago.
The opening language of Const. 1963, art 2, § 4(2), “[e]xcept as otherwise provided in
this constitution,” signals that the legislative power is not unfettered, but instead is subject to
other constitutional provisions. A reading of the constitutional provisions that pertain to
petitions does not suggest that the Legislature may impose a requirement to cap the number of
voter signatures to be counted from a particular geographic region. To the extent that the
Legislature cites its authority to enact certain specifications for petitions, such as font size,
clerical matters such as that simply cannot be compared to the 15% cap on voters’ signatures
promoted here.
Although the Legislature indicates that its goal in enacting the 15% limit was to ensure
participation from voters in the entire state, participating in the voting process is a right held by
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the people―not an obligation to be forced upon them by some means. And the 15% cap violates
the rights of Michigan electors to participate in the electoral process by potentially excluding
some from the petition process. Though the Legislature also generally asserts that PA 608 was
intended “[t]o preserve the purity of elections and guard against abuses of the elective franchise
related to ballot initiatives,” the Legislature does not explain any specific impurities or abuses to
be remedied by the 15% cap.
In Todd v Election Comm'rs of Kalamazoo, Calhoun, Branch, Eaton & Hillsdale Cos,
104 Mich 474, 483; 64 NW 496 (1895), our Supreme Court, quoting Justice Cooley's treatise on
constitutional law, articulated the applicable standard courts are governed by in determining the
constitutionality of acts passed by the Legislature to preserve the purity of elections. “All such
reasonable regulations of the constitutional right which seem to the legislature important to the
preservation of order in elections, to guard against fraud, undue influence, and oppression, and to
preserve the purity of the ballot-box, are not only within the constitutional power of the
legislature, but are commendable, and at least some of them are absolutely essential.” [Id.,
quoting Cooley, Const Lim 602.]. While the “purity of elections” concept has been applied in
different factual settings, “it unmistakably requires . . . fairness and evenhandedness in the
election laws of this state.” Socialist Workers Party v Secy of State, 412 Mich 571, 598; 317
NW2d 1 (1982).
Given its absolute cap on voters’ signatures among geographic districts, PA 608 cannot
be characterized as setting forth an “evenhanded” restriction akin to the types of restrictions that
have been upheld in the past. For example, in Consumers Power Co v Attorney General, 426
Mich 1; 392 NW2d 513 (1986), our Supreme Court addressed the constitutionality of 1973 PA
112, which instituted a rebuttable presumption that any signatures on petitions for constitutional
amendments or initiative legislation that were made more than 180 days before the petition’s
filing date with the Secretary are stale and should be void. The statute’s objective was to assure
that only registered voters of Michigan could propose a constitutional amendment. Id. at 2-8.
The restriction in that case can be considered closely aligned with its purpose to ensure that only
Michigan registered voters signed petitions. In contrast, PA 608’s objective has not been
demonstrated to be closely related to the purity of the petition process. Further, here the 15%
requirement is a ceiling, not a floor. Its effect would be to unconditionally deny untold numbers
of registered voters the right to have their signatures counted, a fact that distinguishes it from the
rebuttable presumption of staleness offered in Consumers Power.
Nothing in the plain language of Const. 1963, art. 2, § 4 provides a basis for the
Legislature to control the number of voters’ signatures to be counted toward a ballot petition and
to categorically restrict voters who sign above the 15% limit of PA 608. Fairness and
evenhandedness would be served by allowing all electors in the state who wish to sign a petition
have their signatures count. In the absence of any reasonable, supported argument suggesting
otherwise, we do not interpret the 15% cap as serving to preserve the purity of elections or guard
against abuses of the elective franchise.
An important rule of constitutional construction “requires consideration of the
circumstances surrounding the adoption of the constitutional provision and the purpose sought to
be accomplished . . . .” House Speaker v Governor, 443 Mich 560, 580; 506 NW2d 190 (1993)
(citation and quotation marks omitted). And “the most instructive tool for discerning the
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circumstances surrounding the adoption of the provision is the floor debates in the Constitutional
Convention record.” Id. at 580-581. Significantly, the delegates to the 1961 Constitutional
Convention considered adding a 25% geographic requirement to the Constitution. Proponents
gave reasons similar to those offered here: to gain an informed electorate and to prevent
placement on the state ballot matters of only very local interest. Opponents stated that all
signatures of voters should be equally counted, and the rule of “one person, one vote” should
hold true for petition signors as well. The delegates voted down the geographic requirement.
(Official Record, Constitutional Convention 1961, p 3200-3201.) Thus, it is manifest that the
people specifically and deliberately chose not to add a geographic requirement to the
Constitution. Had the people wanted to tie a geographic condition to the process, they would
have done so. The constitutional provisions relating to petitions simply do not reference a
geographic requirement that is tied to the power of initiative, referendum, or constitutional
amendment, and a geographic component is clearly outside not only the language of the relevant
constitutional sections but also the intent of the drafters of these sections.
Differences of opinion on initiatives are commonplace and addressed, as they should be,
through the voting process. Setting a 15% geographic limitation serves to take power out of the
hands of the people and requires, in essence, a pre-vote of agreement in a certain number of
congressional districts as to whether or not a matter should be put to a general vote. This places
the cart before the horse and unduly burdens the initiative and petition process. That the process
would be more difficult was unrebutted below, where the League of Women Voters filed
affidavits with the Court of Claims detailing the myriad increased time and cost burdens imposed
by the 15% geographic requirement.11
In reaching our decision, we ultimately need only reach back to the most basic principles
set forth in Marbury v Madison, 5 US 137, 177-178; 2 L Ed 60 (1803):
It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must
decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to
any ordinary act of the legislature; the constitution, and not such ordinary act,
must govern the case to which they both apply.
11
We also note that the boundaries of congressional districts change every ten years and some
districts have disappeared entirely throughout the years, providing yet more potential for
confusion and added burdens associated with the 15% cap.
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Those then who controvert the principle that the constitution is to be considered,
in court, as a paramount law, are reduced to the necessity of maintaining that
courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It
would declare that an act, which, according to the principles and theory of our
government, is entirely void; is yet, in practice, completely obligatory. It would
declare, that if the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It would be giving
to the legislature a practical and real omnipotence, with the same breath which
professes to restrict their powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed as pleasure.
We hold that PA 608, specifically the provision set forth in MCL 168.471 imposing a
15% geographic limit constitutes an unnecessary and, therefore, unreasonable restraint on the
constitutional right of the people to initiate laws. It is thus unconstitutional. The same holds true
for MCL 168.477 and 168.483(4), involving the 15% geographic requirement. As a result of this
holding, we need not consider the League of Women Voters’ alternative arguments on this issue.
B. CIRCULATORS
We next turn to the requirements set forth in 2018 PA 608 concerning petition
circulators. Several parts of PA 608 are at issue. First, MCL 168.482 provides, in relevant part:
(7) Each petition under this section must provide at the top of the page check
boxes and statements printed in 12-point type to clearly indicate whether the
circulator of the petition is a paid signature gatherer or a volunteer signature
gatherer.
(8) Each petition under this section must clearly indicate below the statement
required under subsection (7) and be printed in 12-point type that if the petition
circulator does not comply with all of the requirements of this act for petition
circulators, any signature obtained by that petition circulator on that petition is
invalid and will not be counted.
PA 608 also provides a criminal penalty for a false indicator of a circulator’s status. MCL
168.482c provides: “The circulator of a petition under section 482 who knowingly makes a false
statement concerning his or her status as a paid signature gatherer or volunteer signature gatherer
is guilty of a misdemeanor.” Finally, MCL 168.482a(1) requires that “[i]f an individual who
circulates a petition under section 482 is a paid signature gatherer, then that individual must,
before circulating any petition, file a signed affidavit with the secretary of state that indicates he
or she is a paid signature gatherer.” If a paid circulator has not filed the affidavit, any signature
obtained by the circulator is invalid and, if a circulator’s petition does not meet the necessary
requirements under section 482, any signature on that petition is invalid. MCL 168.482a(2) and
(4).
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The Court of Claims concluded that the check-box requirement does not substantially
relate to a sufficiently important governmental interest and is therefore unconstitutional. It
upheld, however, the affidavit requirement. On appeal, the Legislature asserts that both
requirements are constitutional, whereas the League of Women Voters asserts that neither is. We
agree with the League of Women Voters.
The First Amendment provides that Congress “shall make no law . . . abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” The Fourteenth Amendment makes that
prohibition applicable to the states. Where, as here, First Amendment rights are implicated, the
Supreme Court has held that exacting scrutiny is applied.
In Meyer v Grant, 486 US 414; 108 S Ct 1886, 100 L Ed 2d 425 (1988), proponents of an
initiative to amend the state of Colorado’s Constitution brought an action to challenge the
constitutionality of Colorado's statutory prohibition against paying circulators of initiative
petitions. The proponents sought a declaration that the statutory payment prohibition violated
their First Amendment rights. Id. at 416. On review, the Supreme Court noted that “[t]he
freedom of speech and of the press guaranteed by the Constitution embraces at the least the
liberty to discuss publicly and truthfully all matters of public concern without previous restraint
or fear of subsequent punishment.” Id. at 421. It then stated:
The circulation of an initiative petition of necessity involves both the expression
of a desire for political change and a discussion of the merits of the proposed
change. Although a petition circulator may not have to persuade potential
signatories that a particular proposal should prevail to capture their signatures, he
or she will at least have to persuade them that the matter is one deserving of the
public scrutiny and debate that would attend its consideration by the whole
electorate. This will in almost every case involve an explanation of the nature of
the proposal and why its advocates support it. Thus, the circulation of a petition
involves the type of interactive communication concerning political change that is
appropriately described as “core political speech.” [Id. at 421-422]
The Supreme Court opined that the prohibition on paid petition circulators restricted political
expression by restricting the number of people who would carry the sponsors’ message, thereby
limiting the size of the audience, and would make it less likely that sponsors would obtain the
necessary signatures, thereby limiting the odds that they could garner a statewide ballot proposal.
Id. at 423. It thus determined that the statute involves a limitation on political expression subject
to exacting scrutiny. Id. at 420.
Ultimately, the Supreme Court found that the statute violates the First and Fourteenth
Amendments. “[L]egislative restrictions on advocacy of the election or defeat of political
candidates are wholly at odds with the guarantees of the First Amendment. That principle
applies equally to ‘the discussion of political policy generally or advocacy of the passage or
defeat of legislation.’ ” Id. at 428 (citation omitted). “The Colorado statute prohibiting the
payment of petition circulators imposes a burden on political expression that the State has failed
to justify.” Id. In reaching its conclusion, the Court rejected the state’s claimed interest in
protecting the integrity of the petition process, reasoning that the state had not shown that it
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needed to burden the sponsors’ ability to communicate to preserve that process. The Court also
noted that the state had not offered evidence that a paid circulator would be more likely to pad
signatures, and declined to make that presumption. Id. at 424-426.
Similarly, in Buckley v Am Constitutional Law Found, Inc, 525 US 182, 186; 119 S Ct
636; 142 L Ed 2d 599 (1999), the Supreme Court reviewed conditions that Colorado statutes
placed on the ballot-initiative process. Relevant to the instant matter, one of the conditions was
the requirement that circulators wear identification badges bearing the circulator’s name and
whether the circulator was paid or was a volunteer. Recognizing that “the First Amendment
requires us to be vigilant in . . . guard[ing] against undue hindrances to political conversations
and the exchange of ideas,” the Buckley Court held that the restrictions at issue “significantly
inhibit communication with voters about proposed political change, and are not warranted by the
state interests (administrative efficiency, fraud detection, informing voters) alleged to justify
those restrictions.” Id. at 192. The timing of the disclosure, at the same time the circulator’s
political message was revealed, was of significant importance to the Buckley Court because it
“forces circulators to reveal their identities at the same time they deliver their political message;
it operates when reaction to the circulator's message is immediate and may be the most intense,
emotional, and unreasoned.” Id. at 198-199 (citation and internal quotation marks omitted).12
Meyer and Buckley instruct that exacting scrutiny is applied to the core political speech at
issue in this case. The exacting scrutiny standard “requires a substantial relation between the
disclosure requirement and a sufficiently important governmental interest.” John Doe No 1 v
Reed, 561 US 186, 196; 130 S Ct 2811; 177 L Ed 2d 493 (2010) (citation and quotation marks
omitted). For a statute or regulation to survive exacting scrutiny, “the strength of the
governmental interest must reflect the seriousness of the actual burden on First Amendment
rights.” Id. (citation and quotation marks omitted). When a law burdens core political speech,
exacting scrutiny applies and the restriction is upheld only if “it is narrowly tailored to serve an
overriding state interest.” McIntyre v Ohio Elections Com'n, 514 US 334, 347; 115 S Ct 1511;
131 L Ed 2d 426 (1995). Moreover, when the government burdens speech, “the government
bears the burden of proving the constitutionality of its actions;” i.e., the government bears the
burden of identifying a substantial interest and justifying its restriction. United States v Playboy
Entmt Group, Inc, 529 US 803, 816–17; 120 S Ct 1878; 146 L Ed 2d 865 (2000).
Here the Legislature has not articulated a specific state interest directly aligned with PA
608’s mandate that petition circulators check a box regarding their paid or volunteer status. The
Legislature instead has indicated that PA 608 in general was designed to increase transparency in
elections and accountability for voters. Meyer, however, weighed the state’s interest in the
integrity of the petition but found it did not outweigh the restriction on the sponsors’ ability to
communicate with voters.
12
Although the Buckley Court expressly declined to address the constitutionality of the
paid/volunteer indicator on the badge (id. at 200), the concerns about the timing of disclosures a
circulator may otherwise choose to keep private are no less compelling in circumstances where
the status of the circulator is at issue.
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The Legislature relies upon Citizens in Charge v Gale, 810 F Supp 2d 916, 928 (D Neb,
2011), to support its position otherwise. Not only is this case not binding on this Court,13 we are
not persuaded by the decision reached in that matter. Significantly, the Gale court made its
determination concerning a law that burdened core political speech by placing the burden on the
parties alleging a violation of their First Amendment rights: “[n]either the plaintiffs nor the
intervenors offered any significant or substantially credible evidence that the required language,
color and type impaired their ability to obtain signatures.” Id. at 928. This shifting of the burden
was inappropriate given the clear mandate by our Supreme Court that, when First Amendment
rights are implicated, “the government bears the burden of proving the constitutionality of its
actions.” Playboy Entmt Group, Inc, 529 US 816-817.
The check-box requirement forces petition circulators to make revelations to potential
petition signers at the same time the circulators are delivering their political message and at a
time “when reaction to the circulator’s message is immediate and may be the most intense,
emotional, and unreasoned[.]” Buckley, 525 US at 199. This type of compelled disclosure
discourages participation in the petition circulation process and inhibits core political speech.
See id. Again, for a statute or regulation to survive exacting scrutiny, “the strength of the
governmental interest must reflect the seriousness of the actual burden on First Amendment
rights.” John Doe No 1, 561 US at 196 (citation and quotation marks omitted). Where, as here,
no real governmental interest has been asserted, let alone been proven, the circulators’ right to be
free of potential “heat of the moment” harassment and to protect their privacy regarding their
status as either a paid circulator or a volunteer, as well as the sponsors’ right to have circulators
engage in discourse with voters, outweigh the state’s generally stated interests in transparency
and accountability.
The Legislature has simply not demonstrated that PA 608’s check-box requirement is
necessary to serve its vaguely-asserted interests. To the extent that the Legislature contends that
the check box is intended to inform the electorate of a circulator’s paid or volunteer status, if any
potential signer seeks such information, they could simply ask the circulator. “The simple
interest in providing voters with additional relevant information does not justify a state
requirement that a writer make statements or disclosures she would otherwise omit.” McIntyre,
514 US at 348. We hold that the check-box requirement is not narrowly tailored to serve an
overriding state interest. The check-box requirement does not pass exacting scrutiny in this
matter and is thus unconstitutional.14
13
“Although lower federal court decisions may be persuasive, they are not binding on state
courts.” Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
14
We recognize that the check-box appears to be a minor burden on circulators. However, even
if this Court was to apply a lesser scrutiny, such as a sliding scale addressed in Citizens for Tax
Reform v Deters, 518 F3d 375, 380 (CA 6, 2008), we would still find the check-box requirement
unconstitutional. Although the burden applies in equal force to both paid and unpaid circulators,
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We find that the same holds true for the affidavit requirement. Notably, PA 608 requires
only petition circulators who are paid, but not volunteer circulators, to file an affidavit before
circulating a petition and mandates that, if an affidavit is not filed, signatures collected by those
circulators will not be counted:
(1) If an individual who circulates a petition under section 482 is a paid
signature gatherer, then that individual must, before circulating any petition, file a
signed affidavit with the secretary of state that indicates he or she is a paid
signature gatherer.
(2) Any signature obtained on a petition under section 482 by an
individual who has not filed the required affidavit under subsection (1) is invalid
and must not be counted. [MCL 168.482a(1),(2).]
As noted, PA 608 also provides a penalty for a false indicator of that status.15
The United States Supreme Court has clearly recognized First Amendment protections
for paid petition circulators. In Meyer, the Supreme Court struck down Colorado’s prohibition
on the use of paid petition circulators. In Buckley, the Supreme Court rejected, on First
Amendment grounds, portions of a Colorado statute requiring reports disclosing information
regarding only paid petition circulators’ names, addresses, and amounts paid to those circulators.
Buckley, 525 US at 201-204. The Supreme Court held that “[l]isting paid circulators and their
income from circulation forc[es] paid circulators to surrender the anonymity enjoyed by their
volunteer counterparts,” and that the reporting requirements were “no more than tenuously
related” to the substantial state interests that disclosure serves, ruling that, to the extent that
reports targeted paid circulators, they failed the exacting scrutiny test. Id. Although Buckley is
distinguishable because the legislation at issue in that case required the disclosure of the
circulator’s name and other identifying information, the affidavit requirement here still makes
circulators fulfill a requirement that their volunteer counterparts need not.
The affidavit requirements do not simply target paid circulators, similar to the provisions
struck down in Buckley, they also impose substantial burdens on paid circulators that are not
shared by volunteer circulators. First, although PA 608 contains a definition of a “paid signature
gatherer,”16 there may be issues concerning the clarity of that definition. If circulators have any
doubts regarding their status, they may not be aware of the need to file a pre-circulation affidavit.
the fact remains that the Legislature has offered no realistic justification for the burden, as is its
obligation when burdening First Amendment core political speech.
15
See MCL 168.482c.
16
The statute indicates that a paid circulator is “an individual who is compensated, directly or
indirectly, through payments of money or other valuable consideration to obtain signatures on a
petition as described in section 471.”
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This could infringe on the voters’ right to political speech because the voters’ signatures on those
circulators’ petitions would not be counted.
Second, as demonstrated from the affidavits in the lower court record, time is of the
essence in any petition campaign. The affidavit requirement will make sponsors’ political
speech more difficult by increasing the time required in petition drives where paid circulators
must file affidavits before circulating any petitions. Volunteer circulators would not, of course,
be subject to the more limited time frame necessarily required of paid circulators.
Third, the affidavit requirement for some circulators, but not others, based on whether
work is paid, will result in harsher treatment for organizations that must rely on paid circulators.
See Riley v National Federation of the Blind of North Carolina, Inc, 487 US 781, 799; 108 S Ct
2667; 101 L Ed 2d 669 (1988) (explaining that a requirement applying to only paid personnel
making charitable solicitations “necessarily discriminates against small or unpopular charities”
that typically rely on professional fundraisers).
Given the fact that the affidavit must be submitted before signatures may be collected,
and that it applies only to paid signature gatherers, it can be seen as imposing a significant
burden on the right of political speech protected by the First Amendment. This Court must
balance this burden against the state’s interests in transparency and providing voters with useful
information about the electoral process.
The Legislature has not shown why an affidavit relating to an individual circulator’s
status, rather than information from sponsors of a petition, would aid in serving the state’s
interests. It is beyond dispute that Michigan has an important interest in an orderly petition
process. The Legislature, however, has presented very little basis for a conclusion that PA 608’s
requirement for a pre-circulation affidavit to be filed only by people who receive remuneration
for their petition circulation is either necessary or substantially related to that interest. Indeed,
the Secretary indicates in her appeal brief that under existing law, petitions must already contain
the circulator’s address, and that “[i]t is not apparent why she would need, or be helped by,
receiving the additional detail that a circulator is paid.”
The Legislature has not shown that the state’s interests are furthered by the disclosure
requirement, which singles out only paid circulators and burdens the sponsors’ political speech
by imposing a requirement that circulators must file an affidavit before obtaining signatures.
The affidavit requirement is thus unconstitutional.
V. SEVERABILITY
Having found certain portions of 2018 PA 608 unconstitutional, we must necessarily
address whether such portions can be severed from the remainder of the Act.
PA 608 does not address severability. However, it is undisputable that Courts have
statutory authority to sever unconstitutional portions of statutes from the whole:
In the construction of the statutes of this state the following rules shall be
observed, unless such construction would be inconsistent with the manifest intent
of the legislature, that is to say:
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If any portion of an act or the application thereof to any person or circumstances
shall be found to be invalid by a court, such invalidity shall not affect the
remaining portions or applications of the act which can be given effect without
the invalid portion or application, provided such remaining portions are not
determined by the court to be inoperable, and to this end acts are declared to be
severable. [MCL 8.5.]
Moreover, it has long been held that courts will not invalidate an entire act if the offending
provisions can be severed from the act. Avis Rent–A–Car Sys, Inc v City of Romulus, 400 Mich
337, 348-349; 254 NW2d 555 (1977).
PA 608 can be given effect without the 15% geographic requirement, the check-box
requirement, and the pre-circulation affidavit. There is and has been no argument otherwise.
Thus, sections relating to those requirements are stricken from the Act. This Court affirms the
Court of
Claims ruling which struck the 15% geographic requirement in sections MCL 168.471, MCL
168.477(1), and MCL 168.482(4), as well as the check-box requirement in MCL 168.472(7).
We reverse the Court of Claims ruling that the affidavit requirement passes constitutional muster
and strike the pre-circulation affidavit requirement of MCL 168.472(2).
Affirmed in part and reversed in part.
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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