Ballot Access Is A Supreme Concern
By Kevin Rex Heine, Section News
The headline on the front page of the Saturday paper was "CHAOS!" in four-inch, boldface, all-caps block type, punctuated by an exclamation point just in case passers-by didn't get the hint. The article underneath the attention-grabber discussed the previous day's 4-3 ruling by the Michigan Supreme Court in Stand Up For Democracy v Citizens For Fiscal Responsibility, in which Justice Mary Beth Kelly, accomplishing a legal parse worthy of John Roberts, sided with Justices Michael Cavanagh, Marilyn Kelly, and Diane Hathaway and voted to order the Emergency Manager Referendum onto the November 2012 statewide general ballot, and touched off a power struggle involving contradictory claims about the status of municipalities and school districts currently operating under emergency managers. Also in that same Saturday paper was a statement from Detroit Mayor Dave Bing, a statement from Michigan Governor Rick Snyder, and an op-ed piece from Stephen Henderson urging a rejection of the repeal (which he followed up on in more detail in his Sunday News & Views column).
Who says a Friday news dump doesn't get much attention?
And now, because of the actions of the Board of State Canvassers, we have a situation that may involve another Friday news dump . . . on a weekend when both of this state's major political parties have other things to do.
Earlier this week, both the Detroit News and the Detroit Free Press reported that the Board of State Canvassers denied ballot access to the Casino Gaming Amendment, the International Bridge Initiative, and the Taxation Amendment. This in spite of the fact that all three petitions were favored by the board by a 2-to-1 vote. But the funny thing is that, according to the rules for how the Board of Canvassers operate, an approval vote must include at least one "yes" vote from both sides of the political aisle, which is why the board normally consists of four members . . . specifically to avoid the unseemly event of a majority vote being overruled by the lack of bi-partisan consensus.
Since the two "yes" votes, James Waters and Julie Matuzak, are both democrats, and the lone republican, Colleen Pero, was the "no" vote, you may find yourself wondering where the other republican on that board was back on Monday. Strangely enough, that's easier to answer than you'd think. It turns out that Norm Shinkle, vice-chair of the board, was absent from Monday's critical meeting . . . because he was in Tampa this week attending the Republican National Convention, and had to be there early because he's a member of this year's platform committee. According to his quote in the Freep:
Reached by telephone, Shinkle said he was a member of the platform committee and had to arrive in Florida on Aug. 19. He said he inquired about participating in the meeting by telephone but was told that was not allowed.
So Mr. Shinkle, a paid staff member of the Michigan Republican Party, found it more appropriate to be at the national convention in Tampa than in Lansing than fulfilling his constitutional responsibilities to the State of Michigan. And even if he had been here, he probably would have sided with Pero. I can see where that might be a good thing on the casino proposal, but it does raise a question with regard to the other two.
Here's what I mean with regard to the Casino Gaming Amendment. In the Secretary of State's Staff Review of the "Citizens For More Michigan Jobs" petition, Protect MI Constitution asserts:
The legal appeal resulted in a unanimous opinion by the Court of Appeals granting a writ of mandamus directing that the Secretary of State to reject the CFMMJ ballot question petition. The core of the opinion is that, not only must Article 12, § 2 be complied with, but that because this deals with a voter-enacted statute, also Article 2, § 9, and Article 4, § 24 also apply. According to the opinion, because the Casino Gaming Amendment proposal doesn't comply with all three sections, a writ of mandamus was issued, ordering the Secretary of State to reject the proposal from the ballot. The only issue that Judge Amy Ronayne Krause seemed to have in her partial dissent was that she wasn't convinced that examining an initiative proposal for compliance with Constitutional prerequisites involved discretionary authority outside the ministerial duties of the executive office in question.
The subsequent appeal to the Michigan Supreme Court resulted in a reversal of the lower court ruling, vacation of the writ of mandamus, and direction to the Board of Canvassers to proceed. (The Detroit Free Press erroneously reported that this was an order to place the Casino Gaming Amendment on the ballot; it was not, but merely an order for the Board of Canvassers to make its own decision.) But the reversal was not without objection, from a known rule-of-law justice on the court. Justice Markman, in a concurring opinion, said:
"... The petition fails even to alert voters to the fact that they are being asked to amend a law that they themselves previously enacted through the initiative process, a requirement, in my view, that is provided for by both Const 1963, art 2, § 9 and Const 1963, art 4, § 25, the former requiring that a conflict with an existing voter-initiated law be identified and the latter requiring republication of the conflicted law.
. . . which, frankly, doesn't sound much like "concurrence" to me.
So maybe Mrs. Pero had some justification to vote to reject the Casino Gaming Act; apparently it, like the Protect Our Jobs Amendment, is structured so as to hide its true intention until after it has been passed. Keep in mind that "Protect Our Jobs" is also being appealed to the SCOMI because Citizens Protecting Michigan's Constitution is seeking a reversal of a COA ruling and order placing POJA on the November ballot. (And I notice that it's the same judicial panel as the CFMMJ petition.)
Nevertheless, according to the Detroit News, Thursday the Michigan Supreme Court heard oral arguments (well, six of them did anyway) on appeals regarding the Casino Gaming Amendment, the International Bridge Initiative, the Taxation Amendment and the Protect Our Jobs Amendment. Evidently, the operative question in each matter is whether the proposals are making undisclosed changes to the state constitution without informing voters. According to the third Detroit News article in as many days on this last-minute legal drama:
"The justices must decide the fate of the ballot proposals by Sept. 7 so election officials can begin printing and mailing ballots to overseas voters."
So, sometime in the next seven days, we'll be getting four rulings (or perhaps a consolidated ruling) from the state's high bench that will affect whether we have three proposals on this fall's ballot, or seven, or somewhere in between. Somewhere in the clutter we'll also perhaps find some guidance as to what the limits are on the Board of Canvassers' authority to rule on citizen initiatives. And there is definitely potential that the Schuette Precedent (upheld by the Taylor Court) may be partially or completely overturned.
Except in rare situations specifically listed in the Michigan Constitution, the Michigan Supreme Court has the sole discretion to determine which cases it wants to consider. In typical practice, there are three reasons that the court will grant leave to hear a case on appeal:
I can't tell you how much the union threat to commit $58 million to "crashing the court" if they don't get their way may factor into how the rule-of-law justices decide on these four proposals. But I can tell you that most of the delegates to the Michigan Republican State Convention, who will be voting on the SCOMI vacancy nomination, will be watching to see how the court rules.
Hell, it wouldn't surprise me if that was part of the plan all along.
Ballot Access Is A Supreme Concern | 5 comments (5 topical, 0 hidden)
Ballot Access Is A Supreme Concern | 5 comments (5 topical, 0 hidden)
Related Links+ article underneath the attention-grabber
+ Stand Up For Democracy v Citizens For Fiscal Responsibility
+ accomplish ing a legal parse worthy of John Roberts
+ Emergency Manager Referendum
+ November 2012 statewide general ballot
+ touched off a power struggle
+ statement from Detroit Mayor Dave Bing
+ statement from Michigan Governor Rick Snyder
+ op-ed piece from Stephen Henderson
+ followed up on in more detail
+ Detroit News
+ Detroit Free Press
+ Casino Gaming Amendment
+ Internatio nal Bridge Initiative
+ Taxation Amendment
+ According to his quote in the Freep
+ a paid staff member of the Michigan Republican Party
+ Citizens For More Michigan Jobs
+ unanimous opinion by the Court of Appeals
+ in her partial dissent
+ appeal to the Michigan Supreme Court
+ erroneousl y reported
+ hide its true intention until after it has been passed
+ COA ruling and order placing POJA on the November ballot
+ according to the Detroit News
+ six of them did anyway
+ Casino Gaming Amendment 
+ Internatio nal Bridge Initiative 
+ Taxation Amendment 
+ Protect Our Jobs Amendment
+ third Detroit News article in as many days
+ Schuette Precedent
+ upheld by the Taylor Court
+ Also by Kevin Rex Heine