Reproductive Freedom for All v. Bd. of State Canvassers

• Decision Date: 08 September 2022
• Docket Number: SC: 164760
• Parties: REPRODUCTIVE FREEDOM FOR ALL, Peter Bevier, and Jim Lederer, Plaintiffs, v. BOARD OF STATE CANVASSERS, Secretary of State, and Director of Elections, Defendants, and Citizens to Support MI Women and Children, Intervening Defendant.
• Court: Michigan Supreme Court

978 N.W.2d 854 (Mem)

REPRODUCTIVE FREEDOM FOR ALL, Peter Bevier, and Jim Lederer, Plaintiffs,
v.
BOARD OF STATE CANVASSERS, Secretary of State, and Director of Elections, Defendants,
and
Citizens to Support MI Women and Children, Intervening Defendant.

SC: 164760

Supreme Court of Michigan.

September 8, 2022

Order

On order of the Court, the motions for immediate consideration, to expedite, to intervene, for leave to file omnibus response, and to file briefs amicus curiae are GRANTED. The complaint for mandamus relief is considered, and relief is GRANTED. We direct the Board of State Canvassers (the Board) to certify the Reproductive Freedom For All (RFFA) petition as sufficient for placement on the November 8 general election ballot by September 9, 2022.

The Board's duty with respect to petitions is "limited to determining the sufficiency of a petition's form and content and whether there are sufficient signatures to warrant certification." Stand Up for Democracy v Secretary of State , 492 Mich. 588, 618, 822 N.W.2d 159 (2012) (opinion by MARY BETH KELLY , J.). It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition is in regard to whether there is sufficient space between certain words of the text of the proposed amendment. MCL 168.482(3) requires only that "[t]he full

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text of the amendment so proposed must follow the summary and be printed in 8-point type." The "full text" of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them. Assuming that the challengers’ objection to the spacing represents a challenge to the "form" of the petition that the Board properly considered, the petition has fulfilled all statutory form requirements, and the Board thus has a clear legal duty to certify the petition.

We further direct the Secretary of State (Secretary) to include the ballot statement for the RFFA proposal drafted by the Director of Elections and approved by the Board when the Secretary certifies to county clerks the contents of the ballot for the November 8, 2022 general election.

McCormack, C.J. (concurring).

I concur with the order granting mandamus and ordering that the Board of State Canvassers certify the petition at issue for the ballot. The statute governing the form of the petition is designed to ensure that anyone signing a petition understands what they are signing.¹ That's why MCL 168.482 requires that a petition state, in 14-point boldface type, whether it is an "INITIATIVE PETITION AMENDMENT TO THE CONSTITUTION," or "INITIATION OF LEGISLATION," or "REFERENDUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION." And it is why the statute requires a summary of not more than 100 words of the proposed amendment or question proposed. And it is also why the type size for the summary (12 point) and the full text (8 point) of the amendment are specified; smaller than 8-point type would be difficult for many to read. Each requirement promotes transparency and comprehension. None is designed to be an obstacle without a purpose.

Including the full text of the proposal serves that goal too: any signer curious after reading the summary can read the "full text" to be very confident about what exactly they are signing.

Seven hundred fifty three thousand and seven hundred fifty nine Michiganders signed this proposal—more than have ever signed any proposal in Michigan's history. The challengers have not produced a single signer who claims to have been confused by the limited-spacing sections in the full text portion of the proposal. Yet two

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members of the Board of State Canvassers would prevent the people of Michigan from voting on the proposal because they believe that the decreased spacing makes the text no longer "[t]he full text." That is, even though there is no dispute that every word appears and appears legibly and in the correct order, and there is no evidence that anyone was confused about the text, two members of the Board of State Canvassers with the power to do so would keep the petition from the voters for what they purport to be a technical violation of the statute. They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad.

What a sad marker of the times.

Bernstein, J. (concurring).

I acknowledge, as I must, that mandamus is an extraordinary remedy. I vote to grant mandamus relief today because of my consistent belief in the importance of elections in our representative democracy.² Throughout the years, I have voted to grant relief in a number of election cases. Rocha v Secretary of State , ––– Mich ––––; 974 N.W.2d 822 (2022) ( VIVIANO , J., dissenting) (joining Justice VIVIANO ’s dissenting statement that would grant the plaintiff's request for mandamus relief to be placed on the August 2022 primary ballot); Raise the Wage MI v. Bd. of State Canvassers , 509 Mich ––––, ––––; 970 N.W.2d 677, 678 (2022) (Bernstein, J., concurring in part and dissenting in part) ("I believe it is clear that a union label on an initiative petition is not subject to type-size requirements as set forth in MCL 168.482."); Attorney General v Bd of State Canvassers , 500 Mich. 907, 914, 887 N.W.2d 785 (2016) ( BERNSTEIN , J., dissenting) ("I would reverse the Court of Appeals rather than order expedited oral argument, as I believe that the Court of Appeals clearly erred. I write to further explain why I believe that appellant Jill Stein has met the statutory requirements for a recount.").³ In numerous other cases where the legal issue before us was less clear-cut, I have voted for either further consideration or oral argument, given my strong interest in making sure we get these cases right. See Johnson v Bd of State Canvassers , ––– Mich ––––, ––––; 974 N.W.2d 235, 239 (2022) ( BERNSTEIN , J., dissenting) ("Because I believe this case presents significant legal issues worth further consideration, I would order full briefing in this case and hold oral argument next week to ensure that the interests of Michigan voters are fully considered."); Markey v Secretary of State , ––– Mich. ––––; 974 N.W.2d 255 (2022) (would have ordered oral argument); Craig v Bd of State Canvassers , ––– Mich. ––––; 974 N.W.2d 240 (2022) (would have granted the bypass and ordered oral argument);

978 N.W.2d 857

Cavanagh v Bd of State Canvassers , ––– Mich –––; 974 N.W.2d 549 (2022) (would have ordered oral argument); Davis v Highland Park City Clerk , ––– Mich ––––; 974 N.W.2d 550 (2022) ( WELCH , J., dissenting) (joining Justice WELCH ’s dissenting statement that would have found the legal issues worthy of further consideration); League of Women Voters of Mich v Secretary of State , 506 Mich. 886, 887-888, 946 N.W.2d 307 (2020) ( BERNSTEIN , J., dissenting) ("Because absentee ballots will undoubtedly play a significant role in the upcoming general election, I would hold oral argument in this case ahead of that election in order to ensure that the interests of Michigan voters are thoroughly examined and considered before votes are tallied, in order to avoid any potential disruption to the election process. The people of Michigan deserve nothing less."). I believe that my long-expressed interest in letting the people of Michigan make their own decisions at the ballot box speaks for itself.⁴ Accordingly, I join this Court's decision to grant mandamus relief.⁵

Zahra, J. (dissenting).

I dissent from the relief granted in the majority order, without first hearing oral arguments on an emergency basis to address whether the statutory term "full text" includes the spaces between words and, to the extent it does, the quantity of spacing that must be absent before a text may be deemed something less than the "full text" as that term is used in MCL 168.482(3).⁶

The question before this Court is not simply whether to allow a vote on this question of vital importance to Michiganders, a question that has not only captured the attention of the vast majority of the of Michigan residents, but also people across the nation. It is always a serious matter when the electorate considers amending our state Constitution. The stakes are raised higher when the subject matter of the amendment squarely addresses a matter that has been at the center of public debate for more than 50 years. But intense interest in the question presented does not change the law dictating the rules addressing the exercise of direct democracy. Our system for allowing citizens to access the ballot through the exercise of direct democracy is an elaborate one, which requires the collection of signatures on petitions that must display in exacting detail the provisions of the Constitution that will be affected along with the full text of the provisions to be added or deleted from the Constitution. Further, once the requisite number of petition signatures are gathered, they must be submitted to the Bureau of Elections for review before being

978 N.W.2d 858

submitted to the Board of State Canvassers for certification. If a majority of the Board of State Canvassers does not certify the proposal, the measure will not be placed on the ballot without legal intervention and the issuance of a writ of mandamus.

A mandamus action is an extraordinary writ against a public office or officer compelling the undertaking of a ministerial duty. The plaintiff bears the burden of demonstrating entitlement to that extraordinary remedy.⁷ Mandamus will issue only when the right asserted is "clear and specific."⁸ "Mandamus will not lie to compel a public officer to perform a duty dependent upon disputed...