Citizens Protecting Michigan's Constitution v. Sec'y of State

• Decision Date: 07 June 2018
• Docket Number: No. 343517,343517
• Citation: 324 Mich.App. 561,922 N.W.2d 404
• Parties: CITIZENS PROTECTING MICHIGAN’S CONSTITUTION, Joseph Spyke, and Jeanne Daunt, Plaintiffs, v. SECRETARY OF STATE and Michigan Board of State Canvassers, Defendants/Cross-Defendants, and Voters Not Politicians Ballot Committee, doing business as Voters Not Politicians; Count MI Vote, doing business as Voters Not Politicians; Kathryn A. Fahey; William R. Bobier; and Davia C. Downey; Intervening Defendants/Cross-Plaintiffs.
• Court: Court of Appeal of Michigan — District of US

324 Mich.App. 561

922 N.W.2d 404

CITIZENS PROTECTING MICHIGAN’S CONSTITUTION, Joseph Spyke, and Jeanne Daunt, Plaintiffs,

v. SECRETARY OF STATE and Michigan Board of State Canvassers, Defendants/Cross-Defendants,andVoters Not Politicians Ballot Committee, doing business as Voters Not Politicians; Count MI Vote, doing business as Voters Not Politicians; Kathryn A. Fahey; William R. Bobier; and Davia C. Downey; Intervening Defendants/Cross-Plaintiffs.

No. 343517

Court of Appeals of Michigan.

Submitted June 1, 2018, at Detroit.

Decided June 7, 2018, at 9:15 a.m.

Dickinson Wright PLLC (by Peter H. Ellsworth, Robert P. Young, and Ryan M. Shannon ) and Doster Law Offices PLLC (by Eric E. Doster ) for plaintiffs.

Bill Schuette, Attorney General, B. Eric Restuccia, Chief Legal Counsel, and Heather S. Meingast and Denise C. Barton, Assistant Attorneys General, for defendants.

Fraser Trebilcok Davis & Dunlap, PC (by Peter D. Houk, Graham K. Crabtree, and Jonathan E. Raven ) and Lancaster Associates PLC (by James R. Lancaster ) for intervening defendants.

Before: Cavanagh, P.J., and K.F. Kelly and Fort Hood, JJ.

Per Curiam.

Plaintiffs Citizens Protecting Michigan’s Constitution (CPMC), Joseph Spyke, and Jeanne Daunt seek a writ of mandamus that orders defendants Secretary of State (the Secretary) and the Board of State Canvassers (the Board) to reject an initiative petition filed by Voters Not Politicians (VNP) concerning the formation of an independent citizens commission to oversee legislative redistricting and to not place the petition on the 2018 general-election ballot. Intervening defendants Voters Not Politicians Ballot Committee and Count MI Vote, both doing business as VNP, Kathryn A. Fahey, William R. Bobier, and Davia C. Downey filed a cross-complaint, asking this Court to direct defendants to immediately execute their clear legal duties regarding the initiative petition. We deny the relief sought in the complaint for a writ of mandamus and grant the cross-complaint.

I. FACTS AND PROCEDURAL HISTORY

A. THE PARTIES

Plaintiff CPMC is a ballot-question committee. Plaintiff Spyke is a qualified elector registered to vote in Ingham County and is a former paid employee of a political candidate. Plaintiff Daunt, a qualified elector registered to vote in Genesee County, is the parent of a person otherwise disqualified from serving on the proposed commission.

Defendant Secretary is the chief election officer of the state and has supervisory authority over local election officials.

MCL 168.21. See also Const. 1963, art. 5, § 3. Defendant Board is a constitutionally created board. Const. 1963, art. 2, § 7. Its duties are established by law. See MCL 168.22(2) and MCL 168.841. The Board canvasses initiative petitions to determine if the requisite number of qualified and registered electors have signed the petition. It makes the final decision regarding the sufficiency of the petition. MCL 168.476.

Intervening defendant VNP Ballot Committee is a ballot-question committee. Intervening defendant Fahey, a qualified elector registered to vote in Kent County, is the founder and treasurer of VNP. Intervening defendant Bobier, who signed the VNP petition, is a qualified elector registered to vote in Oceana County and a former elected member of the Michigan House of Representatives. Intervening defendant Downey, who signed the VNP petition, is a qualified elector registered to vote in Ingham County.

B. THE INITIATIVE PETITION

On June 28, 2017, VNP Ballot Committee filed an initiative petition for the ballot proposal (the VNP Proposal) with the Secretary as required by MCL 168.471.¹ After staff at the Bureau of Elections (the Bureau) initially refused to recommend that the petition be approved, VNP redrafted the proposal to further address issues of abrogation and alteration. The Board approved the form of the petition on August 17, 2017, noting that its approval did not extend to the substance of the proposal, the substance of the summary of the proposal, the manner in which the proposal language is affixed to the petition, or whether the petition properly characterizes those provisions of the 1963 Michigan Constitution that have been altered or abrogated.

On December 18, 2017, VNP submitted the initiative petition, supported by more than 425,000 signatures² of registered voters, for an amendment to the Constitution to be placed on the November 2018 general-election ballot. Primarily, the VNP Proposal would amend Article 4, § 6 of Michigan’s 1963 Constitution regarding the commission on legislative redistricting by changing the composition of the commission and its administration.³ A new independent citizens commission would have exclusive authority to develop and establish redistricting plans for the senate, the house and congressional districts.

To prevent the VNP Proposal from appearing on the ballot, and before the Board could certify the petition as sufficient or insufficient, counsel for CPMC sent a letter to the Secretary, urging her to reject the VNP Proposal on the ground that it should not be submitted to voters because it was massive and would enact sweeping changes to the Constitution. CPMC contended that it was a general revision of the Constitution and that it therefore could not be accomplished by ballot initiative. Further, the VNP Proposal purportedly omitted multiple sections of the Constitution that would be abrogated by the proposal. CPMC asserted that the Secretary had a clear legal duty to reject the petition.

Counsel for VNP then sent a letter to the Board, requesting that it certify the VNP Proposal for the November 2018 general-election ballot. VNP observed that no challenges to the 428,587 signatures had been filed by the deadline. Further, VNP stated that two separate entities had analyzed the sampled signatures and determined that 466 out of 505 sample signatures were valid, thereby confirming that a sufficient number of signatures support the proposal. VNP indicated that the instant suit by CPMC was irrelevant to the Board’s clear legal duty to certify the VNP Proposal.

On May 22, 2018, the Bureau released its staff report pursuant to MCL 168.476(3). In the report, the Bureau staff recommended that the Board certify the petition.

After plaintiffs filed the instant complaint for mandamus, intervening defendants moved to intervene. This Court granted the motion to intervene and accepted the cross-complaint filed by intervening defendants. Citizens Protecting Michigan’s Constitution v. Secretary of State , unpublished order of the Court of Appeals, entered May 11, 2018 (Docket No. 343517).

The Board notes that it must complete its canvass of the VNP petition at least two months before the November 2018 general election. Const. 1963, art. 12, § 2 ; MCL 168.476(2) ; MCL 168.477(1). The Director of Elections also must prepare a statement of not more than 100 words—regarding the purpose of the proposed amendment—for placement on the ballot. MCL 168.32(2).

C. BACKGROUND

VNP asserts that its proposal is "a desired means to remedy the widely-perceived abuses associated with partisan ‘gerrymandering’^{[4 ]} of state legislative and congressional election districts by the establishment of new constitutionally-mandated procedures designed to ensure that the redistricting process can no longer be dominated by one political party." More than a century ago, Chief Justice MORSE of our Supreme Court warned that the "greatest danger to our free institutions" occurs when a political party retains its political power by dividing election districts in a manner to give special advantages to one group. Giddings v. Secretary of State , 93 Mich. 1, 13, 52 N.W. 944 (1892) ( MORSE , C.J., concurring). He explained the danger as follows:

By this system of gerrymandering, if permitted, a political party may control for years the government, against the wishes, protests, and votes of a majority of the people of the State, each Legislature, chosen by such means, perpetuating its political power by like legislation from one apportionment to another. [ Id. ]^{[5 ]}

Ninety years later, our Supreme Court commented that "[i]n many states, the most egregious gerrymandering is practiced by the Legislature with the aid of computers to achieve results which will pass muster under federal standards yet favor the partisan interests of the dominant political faction." In re Apportionment of State Legislature—1982, 413 Mich. 96, 137, 321 N.W.2d 565 (1982). In short, "[i]t is axiomatic that apportionment is of overwhelming importance to the political parties." In re Apportionment of State Legislature—1992, 439 Mich. 715, 716, 486 N.W.2d 639 (1992). Or, as Senator John Cornyn of Texas once said, " ‘You can’t take the politics out of politics, and there is nothing more political than redistricting.’ "⁶

We are not alone in analyzing redistricting issues. Challenges to alleged unconstitutional partisan gerrymandering are pending in the United States Supreme Court in two cases.⁷ Further, suit has been brought in the United States District Court for the Eastern District of Michigan to contest Michigan’s existing apportionment plan.⁸

In the United States, a minority of states employ a nonpartisan independent mechanism for the drawing of legislative districts.⁹ In most of the remaining states, including Michigan, whichever party is in control of the state Legislature draws the districts.¹⁰

D. THE 1963 CONSTITUTION—REDISTRICTING

Under the 1963 Michigan Constitution, the 38 members of Michigan’s senate and the 110 members of the house of representatives are elected according to the district in which they reside. The Constitution sets forth the apportionment factors and rules for individual districts, which are redrawn after the publication of the total population within the federal decennial census. Const. 1963, art. 4.

The apportionment of districts for representatives and senators is not a recent phenomenon: the Michigan Constitution of 1835 addressed apportionment¹¹ and set forth...