League of Women Voters of Mich. v. Sec'y of State
| Decision Date | 29 December 2020 |
| Docket Number | No. 160908,No. 160907,160907 |
| Citation | 506 Mich. 561,957 N.W.2d 731 |
| Parties | LEAGUE OF WOMEN VOTERS OF MICHIGAN, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin, Plaintiffs-Appellees, and Senate and House of Representatives, Intervenors-Appellants, v. SECRETARY OF STATE, Defendant-Appellee. Senate and House of Representatives, Plaintiffs-Appellants, v. Secretary of State, Defendant-Appellee. |
| Court | Michigan Supreme Court |
These consolidated cases involve constitutional challenges to recent amendments of the Election Law, MCL 168.1 et seq. But we cannot address the merits of the issues in these cases unless they are presented in a justiciable controversy. In these cases, we conclude they are not.
We grant the Legislature's motion to intervene in League of Women Voters of Mich. v. Secretary of State , Docket No. 160907, and hold that the Legislature has standing to appeal when the Attorney General abandons her role in defending a statute against constitutional attack in court. Next, we conclude that the case, now properly before us, is moot as to the lead plaintiff, Michiganders for Fair and Transparent Elections (MFTE), because it is no longer pursuing its ballot initiative. As no other plaintiff has standing to pursue the appeal, we vacate the lower-court decisions. Finally, in light of this analysis, we affirm on alternative grounds the Court of Appeals’ holding that the Legislature has no standing in its case against the Secretary of State, Docket No. 160908. Accordingly, we remand both cases to the trial court so they can be dismissed.
Under our Constitution, "[a]ll political power is inherent in the people." Const. 1963, art. 1, § 1. Although the people have granted the Legislature lawmaking authority, Const. 1963, art. 4, § 1, they have retained for themselves three paths to directly exercise that authority: the "referendum," through which the people have "the power to approve or reject laws enacted by the legislature," Const. 1963, art. 2, § 9 ; the "initiative," by which the people can "propose laws and ... enact and reject laws," id. ; and the proposal of constitutional amendments, Const. 1963, art. 12, § 2. Each of these three methods of direct democracy requires the submission of petitions containing a certain number of signatures. Id. ; Const. 1963, art. 2, § 9.
The Legislature is not absent from the process. It is charged with implementing the constitutional provisions for referenda and initiatives, Const. 1963, art. 2, § 9, and with prescribing the form and manner of signing and circulating petitions proposing constitutional amendments, Const. 1963, art. 12, § 2. The Election Law, MCL 168.1 et seq. , regulates these matters.
In 2018, the Legislature amended the Election Law, making three sets of changes to procedures governing petition drives. 2018 PA 608. First, it amended the standards for "determin[ing] the validity of a petition" by requiring that "[n]ot more than 15% of the signatures to be used ... shall be of registered electors from any 1 congressional district." MCL 168.471. As part of this change, the Legislature also amended MCL 168.477 to prohibit the Board of State Canvassers from counting signatures of registered electors in a congressional district that exceed the 15% limitation. In other words, only 15% of the countable signatures could come from any one congressional district. Second, it required that petitions include checkboxes "to clearly indicate whether the circulator of the petition is a paid signature gatherer or a volunteer signature gatherer." MCL 168.482(7). Third, anyone paid to gather signatures must, before circulating the petition, file an affidavit with the Secretary of State indicating that he or she is a paid signature gatherer. MCL 168.482a.
A few months after these amendments took effect, the Attorney General issued a written opinion that they violated the state and federal Constitutions. OAG, 2019-2020, No. 7,310, p. –––– (May 22, 2019). Thereafter, plaintiffs—League of Women Voters of Michigan (LWV), MFTE, Henry Mayers, Valeriya Epshteyn, and Barry Rubin (collectively, the LWV plaintiffs)—sued the Secretary of State, seeking a declaratory judgment that the amendments were unconstitutional along the same lines as the Attorney General suggested. As explained in the complaint, LWV is a nonpartisan group focused on voting and democratic rights. The individual plaintiffs are Michigan voters and MFTE is a ballot-question committee that, at the time the complaint was filed, intended to circulate petitions to amend the Constitution.
A few weeks after the LWV plaintiffs brought their action, the Legislature also filed suit against the Secretary of State, requesting a declaratory judgment that the amendments were constitutional. The two cases were consolidated in the Court of Claims. The Secretary of State, represented by the Attorney General, did not dispute that some of the amendments were unconstitutional, and she also suggested that the Legislature might lack standing to bring its case. In its subsequent opinion, the court agreed that the Legislature had no standing but nonetheless treated its submissions defending the statutes as amicus briefs because the Secretary of State was declining to offer any such defense. On the merits, the court held that the paid-circulator-affidavit requirement was constitutional but the geographic-distribution and checkbox requirements were not.
Plaintiffs in the League of Women Voters case filed a bypass application in this Court, and the Legislature sought to intervene. We denied the bypass and motion to intervene, and the case went to the Court of Appeals for expedited consideration. In a published decision, the Court affirmed the trial court's holding that the Legislature lacked standing and that the geographic-distribution and checkbox requirements were unconstitutional; it reversed on the affidavit requirement, finding that amendment to be unconstitutional as well. In a partial dissent, Judge BOONSTRA would have held that the Legislature had standing and that the checkbox requirement was constitutional. League of Women Voters of Mich. v. Secretary of State , 331 Mich. App. 156, 952 N.W.2d 491 (2020).
None of the parties in the League of Women Voters case sought to appeal, but the Legislature filed an application for leave to appeal listing both its own action and the League of Women Voters action as the cases being appealed. We docketed both cases, but our Court clerk informed the Legislature's counsel that it would need to file a motion to intervene in the League of Women Voters case to become a party to that action. The motion was subsequently filed and the Court heard argument.
It then came to the Court's attention that MFTE had terminated its petition drive. Consequently, we sought supplemental briefing on, among other things, whether this development mooted the League of Women Voters case as to MFTE, whether the remaining LWV plaintiffs had standing, and whether, if the case was mooted as to MFTE and no other plaintiff had standing, the Court should vacate the lower courts’ judgments in the League of Women Voters case.
Questions of law, such as those at issue here, are reviewed de novo.1
In consolidated cases with this much procedural complexity, our analysis of the various issues is necessarily layered. A roadmap is therefore useful: We begin with the Legislature's motion to intervene in League of Women Voters of Mich. v. Secretary of State , Docket No 160907, which we grant. Next, we hold that this case is moot as to MFTE and that none of the other plaintiffs have standing to maintain the action. Consequently, we dismiss the League of Women Voters case and vacate the constitutional holdings below. This leaves the Legislature's appeal in its original action, Senate v. Secretary of State , Docket No 160908. Because the lower courts’ decisions on the merits have been vacated, we conclude the Legislature lacks standing to pursue its own case.
MCR 2.209(B) sets out the requirements for permissive intervention. It states, in relevant part, "On timely application a person may intervene in an action ... when an applicant's claim or defense and the main action have a question of law or fact in common."2 The Legislature undoubtedly meets this standard—the parties in League of Women Voters seek a declaratory judgment as to the constitutionality of certain portions of 2018 PA 608, as does the Legislature.
In other words, Federated held that there was no justiciable controversy because neither of the losing parties below filed a timely appeal and because the Attorney General was not an aggrieved party. Federated never held that there would be no justiciable controversy if the losing parties below failed to file a timely appeal but a party with appellate standing filed a timely motion to intervene (i.e., before the deadline to file an application for leave to appeal). Therefore, Federated left open the possibility that there...
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