It's Called "the Initiative"

(The Board of State Canvassers recently refused to approve a proposed ballot initiative that would have amended the Michigan Constitution to prohibit racial and gender preferences in public hiring and state university admissions. In the commentary below — originally posted in August 2004 — Mackinac Center Legislative Analyst Jack McHugh lamented the apparent politicization of the board, citing a clause in the 1963 Michigan Constitution retaining for citizens "the power to propose laws and to enact and reject laws.”)

In 1963, when Michigan citizens adopted a state constitution granting certain limited powers to state government, they reserved for 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."[1] Unfortunately, the political establishment in Lansing has made several attempts in recent years to subvert both the letter and spirit of the people’s rights in this area.

These attacks have been bipartisan. The latest example has come from Democrats, but two previous assaults had Republican fingerprints. A fourth subversion came from a "nonpartisan" judge taking a partisan position.

The most recent attack occurred on Aug. 23, 2004, when Board of State Canvassers members Doyle O'Connor and Dorothy Jones refused to certify an initiative that would have established in the state constitution that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." If not reversed by the courts, Jones and O’Connor’s action means that the people of Michigan will not have the opportunity to vote on the language this November.

Regardless of one’s opinion of this proposal, the duty of the Board of State Canvassers is clear and limited. They are supposed to decide technical issues like the size and shape of the petition form; ensure that the petition language is clear and explicit; judge whether sufficient signatures have been filed; assign a number to the proposal; and create a 100-word "true and impartial statement" of its purpose, which gets printed on the actual ballots. The board has no legal mandate to rule on the "constitutionality" of a proposed amendment.

Nevertheless, press accounts suggest that it was precisely the purported "unconstitutionality" of the proposal that led Jones and O’Connor to refuse to certify the initiative for the November ballot. They reportedly claimed a duty to keep off the ballot a measure that, in their opinions, a state or federal court would likely overturn. "There comes a point when we have to say, ‘No, this doesn't and can't fly,’" O'Connor said, according to the Michigan Information & Research Service.[2]

As state officials exercising their state-granted powers, the board members’ opinions about potential federal court action are particularly irrelevant. But their claims about the state courts are in some ways even more troubling. Following their reasoning would create a "Catch‑22" that would make the initiative process meaningless: The people have the right to amend the state constitution through initiative, thereby deciding what is constitutional – but only if the state courts will agree that the proposal is already constitutional.

To embrace this logic is to promote a coup in which ultimate authority is transferred from the people to the courts – and to unelected officials who think they know what the courts will say. The two board members who refused to certify the petition have effectively elevated their personal opinion of the proposal’s merits above a legally binding demand from 464,000 petition signers (almost 150,000 more than the number required) – and above the right of the electorate to vote on the issue.

This leads us to a similar "Catch-22" used by Ingham County Circuit Court Judge Paula Manderfield to attack the people’s authority last spring. Judge Manderfield actually ordered the Board of State Canvassers to rescind their approval of the "sufficiency" of the language in a petition to ban the use of minority preferences in public employment, education or government contracting.

"Sufficiency" refers to technical, formatting issues in a petition, including whether the petition language properly cites the constitutional provisions that would be "altered or abrogated" by the proposed amendment. The Michigan Supreme Court has clearly established that this requirement does not force sponsors to spell out every section of the constitution whose interpretation might be reconsidered in light of a proposed amendment. As the court noted in a 1998 decision, an ordinary voter, not being a constitutional lawyer, would not benefit from a listing of all the provisions that might be directly, remotely or contingently affected.

Nevertheless, on March 25, Judge Manderfield ignored this instruction. Eleven weeks later, her ruling was properly thrown out by the Michigan Court of Appeals, but more than two months of uncertainty had thrown a monkey wrench into the initiative sponsor’s signature collection campaign, ultimately causing the entire effort to be postponed until the 2006 general election.

Judge Manderfield’s actions did real damage to a legitimate exercise by citizens of their right to establish the law. Whatever the substance of the proposal itself, the state’s political establishment should not usurp a fundamental right reserved to the people.

This brings us to the final two examples. Legislation passed in 2001 guaranteed law-abiding citizens who have passed certain background checks and training requirements the ability to carry a concealed pistol. As the Legislature was preparing this law, opponents of the measure promised to seek a referendum on it. So the (Republican) Legislature performed a cute trick designed to violate the spirit of the constitution by making the bill "referendum-proof": They attached a minor, incidental appropriation to it. Appropriations bills, for reasons of governmental efficiency, are never subject to a referendum of the people.

Once the law was passed, its opponents still gathered the requisite signatures for a referendum, but the state Supreme Court ruled that the "plain language" of the constitution meant that the Legislature’s token appropriation put the measure off-limits to a referendum. A dissenting justice summed up the result neatly: "Whenever the legislature wants to avoid the people's check on its power, it need only insert some money into a bill, apparently even a de minimis amount, to get around that power."[3]

The court had properly upheld the letter of the law, but the Legislature had violated its spirit. Once the loophole was recognized, state legislators should have acted promptly to close it by placing a constitutional amendment on the ballot that narrowed the appropriations exception to the people’s power of referendum. In 2001, Senate Joint Resolution U was introduced to accomplish this, and in the current legislative session, House Joint Resolution Q would do the same thing.

Don’t hold your breath for reform, however. The Republican-controlled House tried the same trick again last November, when it sought to make the bill authorizing mourning dove hunts "referendum proof" by tacking on an incidental $350,000 "hunters brochure" appropriation. The Senate stripped out the provision, but it’s clear that the people’s right to referendum remains threatened.

The issue here is not marriage, guns, doves or minority preferences. In two of these examples, liberal proponents cheered the outcome; in two others, conservatives applauded.

This is shortsighted. People of all political views should be deeply concerned by these ongoing attacks on a fundamental political right. The people of Michigan must put the political establishment on notice that they will not tolerate subversion of their right to initiative and referendum.

Jack McHugh is the legislative analyst for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. This piece was originally posted in August 2004. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.

[1] Michigan Constitution of 1963, Article II, Sec. 9.
[2] Michigan Information & Research Service, "Capitol Capsule," Aug. 23, 2004
[3] Justice Michael Cavanagh, Michigan United Conservation Clubs v. Secretary of State, SC docket No. 119274, June 29, 2001.