During the 2022 midterm elections, a proposal to expand voting rights in Michigan was on the state’s ballot. Proposal 2, the Promote the Vote ballot initiative, would strengthen mail-in voting and early voting and defend against attacks on the democratic process. But before voters had their say on the matter, Republicans were trying their best to keep the measure off the ballot. After they failed to do so and voters subsequently supported the amendment by a near 20-point margin, state Republicans are back almost a year later, trying again to block the now-approved and enacted proposal via a recently filed lawsuit.
The Promote the Vote initiative was rooted in a historic grassroots movement.
Proposal 2 contained a slew of provisions advancing voting rights in Michigan. The constitutional amendment required military and overseas ballots to be counted if they were postmarked by Election Day, mandated nine days of early voting, expanded drop boxes, provided free postage for absentee applications and ballots, allowed Michiganders to sign up to be permanent mail-in voters and expanded ways for voters to prove their identity.
Not only did Prop 2 strengthen voting rights, but it also protected democracy against growing right-wing threats in the state. The provisions provided that only election officials may conduct post-election audits, required canvas boards to certify election results based only on the official records of votes cast and allowed private funding for election administration.
To place Prop 2 on the ballot, Promote the Vote (PTV) — the group pushing for the initiative — had to garner signatures from 425,059 Michiganders. The group blew that number out of the water, submitting nearly 670,000 signatures, more than 507,000 of which the Michigan Bureau of Elections estimated to be valid.
The campaign to place Proposal 2 on the ballot was led by the same group behind Proposal 3 in 2018, which instituted automatic voter registration, allowed for Election Day registration and no-excuse mail-in voting, among other provisions.
In 2022, Republicans tried to block the amendment even before it got on the ballot.
Once PTV secured the required number of signatures, Prop 2 then had to be considered by the state’s Bureau of Elections. After careful deliberation, the Bureau recommended that the pro-voting measure be placed on the ballot. The only step remaining for the initiative was final administrative sign-off by the Board of State Canvassers. It was then that Republican tactics escalated to new heights.
After attorneys for right-wing groups attacked the measure, the two Republicans on the board voted against putting the amendment on the ballot, relying on dubious claims that the proposal’s petition form failed to note what sections of the state constitution would be impacted.
With Republicans voting against the amendment, the evenly-split board deadlocked 2-2, temporarily stopping the process in its tracks. PTV filed a lawsuit against the canvassing board for its failure to place the initiative on the ballot, alleging that the board violated PTV’s right to due process under the Michigan Constitution.
Just eight days after filing the lawsuit, the Michigan Supreme Court sided with PTV and ordered the Board of State Canvassers to place the proposed constitutional amendment on the ballot, ruling that the board “has a clear legal duty to certify the petition.”
Like in 2018, the 2022 amendment passed in a landslide victory for voting rights.
After Republicans failed to keep the amendment away from voters, Michiganders delivered a resounding voting rights victory. Despite needing just a simple majority to pass, the amendment garnered 60% of the vote.
While the amendment passed, the Michigan Legislature still needed to pass laws that would formally enshrine the amendment’s provisions into the state constitution. This past summer, the Democratic-led Legislature and Michigan Gov. Gretchen Whitmer (D) did so, enacting a slate of laws implementing the proposal in full.
Actually putting the law into practice, however, has proven to be a challenge. The laws so drastically improve voting in the state that election offices and officials statewide have had to scramble to implement the provisions in time for the 2024 election. Michigan is the largest state in the country that administers its elections at the local level, with many local officials working part-time.
While some clerks have described the process as nerve-wracking and challenging, Michigan Secretary of State Jocelyn Benson (D) is confident that the state’s election workers will be able to fully adapt to the changes, saying she has “every confidence that they’ll be ready to meet the moment in 2024.”
A new lawsuit challenging the 2018 and 2022 amendments resurrects the rejected independent state legislature theory.
Last month — nearly a year after Prop 2 prevailed — 11 Michigan Republican state legislators filed a federal lawsuit seeking to nullify both the 2018 and 2022 PTV initiatives now enshrined in the state constitution. The lawsuit additionally seeks to ban future ballot initiatives that would implement changes to federal elections in the state constitution.
The Republican lawsuit hinges on the fringe and discredited independent state legislature (ISL) theory. The theory claims that under the Elections Clause of the U.S. Constitution, state legislatures and state legislatures alone have the power to regulate federal elections. Republicans promoting the ISL theory focus their attention on the word legislature, and argue the clause means state legislatures only — and does not include a governor’s veto, citizen-led ballot measures and state court rulings.
Since the Michigan Legislature was not involved with the passage of the voting amendments and because the initiatives “regulated the times, places and manner of federal elections” by amending the Michigan Constitution, the lawsuit alleges that the 2018 and 2022 PTV amendments are unconstitutional and usurped “legislative power under the Elections Clause because the direct democracy process involves no involvement or approval by the state legislators.”
The ISL theory was roundly debunked as a legitimate theory just last summer when the ultra-conservative U.S. Supreme Court rejected an argument from North Carolina Republicans in Moore v. Harper similarly arguing that state legislatures alone can regulate federal elections. Though that case focused on the ability of state courts to impact federal elections, the underlying premise was the same as is being presented now in Michigan.
The Michigan Constitution allows “petition-and-state-ballot proposals” without state legislative approval, a process that the Republican state lawmakers argue violates their federal rights under the Elections Clause.
The Republican plaintiffs in the case also contend that “[t]he Michigan Constitution vests the legislative power in the state senate members and house of representatives members, including the right to regulate the times, places, and manner of federal elections,” and therefore the voting rights amendments — enacted independent of the Legislature — similarly violate the state constitution.
As part of the lawsuit, the legislators ask the court to rule that the “petition-and-state-ballot-proposal” process is unconstitutional, bar the defendants from “any actions funding, supporting or facilitating” the use of the process, deem the two pro-voting constitutional amendments as “constitutionally invalid” and block the defendants from “any actions funding, supporting or facilitating the use of the 2018 and 2022 constitutional amendments to regulate times, places and manner of federal elections.”
Several Michigan groups that defend voting rights have asked to defend the amendments.
Although the Republican-backed lawsuit was only filed late last month, three nonprofit organizations and two burdened voters have already requested to intervene in the lawsuit to defend the voting rights amendments. The Michigan Alliance for Retired Americans, the Detroit Downriver chapter of the A. Philip Randolph Institute and Detroit Disability Power filed the motion.
The groups allege that the Republican legislators filed the case in a “blatant attempt to weaken the rights that Michigan voters have fortified in recent years,” and further argue that the “plaintiffs seek not only to eschew the will of Michigan voters at large, but also to further insulate themselves from having to answer to their own constituents.”
In asking to dismiss the case, the groups point out that the Michigan Constitution has enshrined the right for citizens “to propose certain amendments to the state constitution by petition” for more than a century. The proposed intervenors claim that the plaintiffs lack standing to bring the claims and argue that the Republican legislators took too long to file the lawsuit — voters approved Proposal 3 nearly five years ago.
Most notably, the groups argue that the Supreme Court has repeatedly rejected the idea that the Elections Clause vests state legislatures with exclusive authority to set the rules governing federal elections.
While the decision in Moore could be more than enough to merit the lawsuit’s dismissal, the motion to intervene contends that the Supreme Court has already rejected the argument that citizen-initiated state constitutional amendments in the federal elections context violate the Elections Clause.
They point to Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the Supreme Court ruled that the Elections Clause does not prevent Arizonans from creating “by ballot initiative a commission to establish congressional districts,” and allege that the Court made clear that it resists singling out federal elections as the one area in which states may not use citizen initiatives as an alternative legislative process.
After failing to prevent the 2022 PTV initiative from being decided by voters, Michigan Republicans are flailing, filing a frivolous lawsuit seeking to block the amendment once again. Invoking a fringe legal theory that was rejected mere months ago by the nation’s highest court, Michigan Republicans are shameless in their efforts to ignore the overwhelming will of Michiganders just because they didn’t get their way.