League of Women Voters of Mich. v. Sec'y of State

• Citation: 339 Mich.App. 257,981 N.W.2d 538
• Decision Date: 29 October 2021
• Docket Number: 357984, No. 357986
• Parties: LEAGUE OF WOMEN VOTERS OF MICHIGAN, Progress Michigan, Coalition to Close Lansing Loopholes, and Michiganders for Fair and Transparent Elections, Plaintiffs-Appellants, v. SECRETARY OF STATE, Defendant-Appellee, and Department of the Attorney General, Intervening Defendant-Appellee. League of Women Voters of Michigan, Progress Michigan, Coalition to Close Lansing Loopholes, and Michiganders for Fair and Transparent Elections, Plaintiffs-Appellees, v. Secretary of State, Defendant-Appellee, and Department of the Attorney General, Intervening Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

339 Mich.App. 257

981 N.W.2d 538

LEAGUE OF WOMEN VOTERS OF MICHIGAN, Progress Michigan, Coalition to Close Lansing Loopholes, and Michiganders for Fair and Transparent Elections, Plaintiffs-Appellants,

v.SECRETARY OF STATE, Defendant-Appellee,andDepartment of the Attorney General, Intervening Defendant-Appellee.

League of Women Voters of Michigan, Progress Michigan, Coalition to Close Lansing Loopholes, and Michiganders for Fair and Transparent Elections, Plaintiffs-Appellees,

v.Secretary of State, Defendant-Appellee,andDepartment of the Attorney General, Intervening Defendant-Appellant.

No. 357984

No. 357986

Court of Appeals of Michigan.

Submitted October 19, 2021, at Lansing.

Decided October 29, 2021, 9:00 a.m.

Goodman Acker, PC, Southfield (by Mark Brewer ) for plaintiffs.

Christopher M. Allen, Assistant Solicitor General, Mark G. Sands, S. Peter Manning, Linus Banghart-Linn, and Christopher Braverman, Assistant Attorneys General, for the Department of the Attorney General.

Daniel S. Korobkin and Sharon Dolente, Bloomfield Hills, for the American Civil Liberties Union of Michigan, Amicus Curiae.

Dickinson Wright PLLC (by Charles R. Spies, Robert L. Avers, Ann Arbor, and Maureen J. Moody, Lansing) and Bursch Law PLLC, Caledonia (by John J. Bursch ), for the Michigan Senate and House of Representatives, Amicus Curiae.

Before: Ronayne Krause, P.J., and K. F. Kelly and Cameron, JJ.

Ronayne Krause, P.J.

In these consolidated appeals, appellants in both cases claim an appeal by right of the July 12, 2021 opinion and order of the Court of Claims, which addressed the constitutionality of certain provisions of 2018 PA 608, granted summary disposition in part to plaintiffs, and dismissed the case. We affirm in part and reverse in part.¹

I. FACTS AND PROCEDURAL HISTORY

In 2018, sponsors of six statewide proposals to initiate laws and constitutional amendments submitted signed initiative petitions; three of those proposals qualified for the ballot. Michigan voters passed all three: (1) Proposal 1 legalized recreational marijuana,² (2) Proposal 2 enacted legislation to establish a legislative redistricting committee comprised of citizens,³ and (3) Proposal 3 expanded voter options, including no-reason absentee voting and straight-ticket voting.⁴ Two other proposals, involving earned sick leave and an increased minimum wage, would have been on the ballot had the Legislature not enacted them within 40 days of receiving the voters’ petitions.⁵

Among the 400 bills submitted to Governor Rick Snyder in the 2018 lame-duck legislative session was a bill to amend the Michigan Election Law, MCL 168.1 et seq. , to set new requirements regarding initiative petitions.⁶ On December 28, 2018, Governor Snyder signed into law 2018 PA 608, which had immediate effect. 2018 PA 608 added a geographic requirement to MCL 168.471, which limited the total number of signatures to be used to determine the validity of a petition to no more than 15% from one congressional district.⁷ Also, when filing petitions with the Secretary of State (the Secretary), 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.⁸ 2018 PA 608 amended MCL 168.477, forbidding the Board of State Canvassers from "count[ing] toward the sufficiency of a 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 ]."

2018 PA 608 also amended MCL 168.482 to require that signatures be gathered on forms designated by congressional district rather than by county, which was the designation previously used.⁹ Also, the amendment requires paid petition circulators,¹⁰ before gathering signatures, to file an affidavit with the Secretary disclosing their nonvolunteer status.¹¹ Additionally, the amendment mandates that new petition forms contain a checkbox for a circulator to indicate whether he or she is a paid circulator.¹² The petition forms also must contain a statement that, if a petition circulator fails to comply with the requirements, signatures obtained by that circulator are invalid and will not be counted.¹³ Under the amendment, circulators who provide false information relating to their status as a paid circulator are subject to criminal prosecution for a misdemeanor.¹⁴ 2018 PA 608 made other substantive changes to the Michigan Election Law, but those changes have not been challenged in this appeal.

On January 22, 2019, the Secretary, the chief election officer of the state,¹⁵ asked Michigan Attorney General Dana Nessel for a formal opinion regarding the constitutionality of 2018 PA 608.¹⁶ In OAG, 2019-2020, No. 7,310 (May 22, 2019), the Attorney General stated that the 15% geographic requirement violated the petition and amendment provisions of the Michigan Constitution because neither of those provisions restricts the number of signatures collected from one geographic region. She also opined that the checkbox requirement did not further any asserted governmental interest and exposed circulators to the risk of "heat of the moment" harassment, such that it was unconstitutional. The Attorney General additionally reasoned that no state interest was apparent in the requirement that the Secretary must receive a precirculation affidavit from paid circulators, particularly when the petitions will contain circulators’ addresses. She concluded that the affidavit requirement was not substantially related to Michigan governmental interests and was unconstitutional. Thus, the Attorney General determined that the following sections that were unconstitutional could be severed from the remainder of the act:

• the portions of MCL 168.471, MCL 168.477, and MCL 168.482(4) involving the 15% geographic requirement;

• MCL 168.482(7) and MCL 168.482c, regarding the checkbox requirement; and

• MCL 168.482a(1) and (2), involving the precirculation affidavit by paid circulators.

In May 2019, the League of Women Voters (the League), Michiganders for Fair and Transparent Elections (MFTE),¹⁷ and three individual plaintiffs filed suit in the Court of Claims against the Secretary, alleging that portions of 2018 PA 608, including the geographic requirement, checkbox, and precirculation affidavit, were unconstitutional. In June 2019, the Michigan House of Representatives and the Michigan Senate (hereinafter, the Legislature) filed a separate action against the Secretary in the Court of Claims. The Legislature likewise sought injunctive and declaratory relief, stating that, as the exclusive lawmaking body of Michigan, it would be harmed if the Secretary refused to enforce 2018 PA 608. It asked the Court of Claims to declare that 2018 PA 608 was constitutional and to direct the Secretary to enforce the new law.

The Court of Claims ruled that the Legislature did not have standing but opted to accept its pleadings as amici curiae briefs. The Court of Claims held that the 15% geographic cap and the checkbox requirement were unconstitutional. The Court rejected the plaintiffs’ challenge to the affidavit requirements for paid petition circulators.

In an expedited¹⁸ decision, this Court affirmed the Court of Claims’ ruling that the 15% geographic cap and the checkbox requirement were unconstitutional and that the Legislature lacked standing to bring the suit. This Court reversed regarding the affidavit requirements for paid circulators, ruling that the affidavit also ran afoul of the Constitution. League of Women Voters of Mich. v. Secretary of State , 331 Mich. App. 156, 952 N.W.2d 491 (2020) ( LWV I ). Judge BOONSTRA dissented, in part, and would have held that the Legislature had standing and that the checkbox requirement was constitutional. Id. at 156, 952 N.W.2d 491 ( BOONSTRA , J., dissenting in part).

The parties in both cases applied for leave to appeal in our Supreme Court. Meanwhile, MFTE had terminated its petition drive because of the COVID-19 pandemic.

Eleven months after this Court's expedited opinion in LWV I , in an opinion by Justice VIVIANO , joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH , our Supreme Court ruled that the case was moot because MFTE was not pursuing its ballot initiative and no other plaintiff had standing to pursue the appeal.¹⁹ League of Women Voters of Mich. v. Secretary of State , 506 Mich. 561, 574-599, 957 N.W.2d 731 (2020) ( LWV II ). The LWV II Court took no position on the merits of the constitutional arguments, declining to examine the legal issues in the absence of a genuine controversy between adverse parties. Id. at 599 n. 60, 957 N.W.2d 731. Beyond affirming this Court regarding standing, our Supreme Court otherwise vacated this Court's opinion in LWV I , commenting that the case "ha[d] been a procedural mess from the beginning...." Id. at 589-590, 957 N.W.2d 731. In dissent, Justice MARKMAN commented that the Court's failure to address the legal issues was "likely only to generate further litigation and controversy." Id. at 612, 957 N.W.2d 731 ( MARKMAN , J., dissenting).

Within weeks of the Supreme Court's order of dismissal in LWV II , Justice MARKMAN ’s prediction was borne out when further litigation commenced. Plaintiffs—the League, Progress Michigan, Coalition to Close Lansing Loopholes, and MFTE—filed the instant declaratory action, seeking injunctive relief in the Court of Claims.²⁰ Plaintiffs maintained that the amendments would increase the cost and difficulty of initiating a petition campaign. They asserted that the 15% geographic requirement was an unconstitutional restriction imposed on the citizens’ rights of initiative, referendum, and/or amendment, particularly because the drafters of the 1963 Constitution expressly rejected geographic limitations for petitions. They also argued that the 15% geographic requirement violated the rights of free speech, association, and petition. They challenged the checkbox and...