Opinion
No. 350938 No. 351073
01-27-2020
LEAGUE OF WOMEN VOTERS OF MICHIGAN, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin, Plaintiffs-Appellants, v. SECRETARY OF STATE, Defendant-Appellee. Senate and House of Representatives, Plaintiffs-Appellants, v. Secretary of State, Defendant-Appellee.
Goodman Acker, PC, Southfield (by Mark Brewer ), Nickelhoff & Widick, PLLC (by Andrew Nickelhoff ), and Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz ) for the League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State. Bursch Law PLLC, Caledonia (by John J. Bursch ) and Dickinson Wright PLLC (by Charles R. Spies and Ariana D. Pellegrino, Detroit) for the Michigan Senate and House of Representatives.
Goodman Acker, PC, Southfield (by Mark Brewer ), Nickelhoff & Widick, PLLC (by Andrew Nickelhoff ), and Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz ) for the League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State.
Bursch Law PLLC, Caledonia (by John J. Bursch ) and Dickinson Wright PLLC (by Charles R. Spies and Ariana D. Pellegrino, Detroit) for the Michigan Senate and House of Representatives.
Before: Servitto, P.J., and Boonstra and Gadola, JJ.
Servitto, P.J.
In these consolidated appeals, plaintiffs in both cases appeal as of right a September 27, 2019 opinion and order of the Court of Claims which addressed two central issues: the constitutionality of certain provisions of 2018 PA 608 and whether or not the Senate and House of Representatives had standing to seek to uphold the constitutionality of a validly enacted statute. We affirm in part and reverse in part.
I. FACTS AND PROCEDURAL HISTORY
On December 28, 2018, 2018 PA 608 was signed into law. This public act amended the Michigan Election Law, MCL 168.1 et seq. , in several respects. First, the act amended MCL 168.471, which governs petitions that propose an amendment to the Michigan Constitution, initiative petitions, and referendum petitions. Prior to amendment, this statute generally set forth the number of signatures that had to be obtained on the petitions and set forth timing requirements for filing the petitions. One of the features of 2018 PA 608 was to add a geographic requirement that limits the total number of signatures to be used to determine the validity of a petition to no more than 15% from one congressional district. Signatures in excess of the 15% per-district limit would not be counted. Additionally, when filing petitions as provided for in that statute, 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.
Michigan is divided into 14 congressional districts. The United States House of Representatives, Directory of Representatives < https://www.house.gov/representatives#state-michigan> (accessed August 27, 2020) [https://perma.cc/9WBV-NEDC]. All congressional districts span multiple counties except one: only District 13 involves a single county, Wayne County. See 2011 PA 128.
Second, the act amended MCL 168.477, which governs the sufficiency of a petition. 2018 PA 608 added a requirement that when the Board of State Canvassers is making an official declaration of the sufficiency or insufficiency of an initiative petition, it may not count toward the sufficiency of the 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.
Third, the act amended MCL 168.482. This statute previously addressed only the format and content of acceptable petitions. The amendment requires sponsors of ballot petitions to gather signatures on forms designated by congressional district rather than by county, the designation previously used. The amendment further adds several parts which (1) require paid petition circulators, before gathering signatures, to file an affidavit with the Secretary of State (the Secretary) disclosing their nonvolunteer status; (2) mandate that new petition forms contain a checkbox for a circulator to indicate whether they are a paid circulator; and (3) require petition forms to contain a statement that, if a petition circulator fails to comply with the requirements, all signatures obtained by that circulator are invalid and will not be counted. In addition, circulators who provide false information relating to their status as a paid circulator would be subject to criminal prosecution for a misdemeanor. On January 22, 2019, the Secretary, who is the chief election officer of the state and has supervisory authority over local election officials, asked Michigan Attorney General Dana Nessel for a formal opinion regarding the constitutionality of 2018 PA 608 because it added new provisions regarding the invalidation of petition signatures that would have been considered lawful under the prior version of the law. By statute, the Attorney General gives opinions on questions of law posed by state officers. See MCL 14.32.
2018 PA 608 made other substantive changes to the Michigan Election Law, but those changes have not been challenged in this appeal, so they are not detailed here.
The statute defines a "paid signature gatherer" as "an individual who is compensated, directly or indirectly, through payments of money or other valuable consideration to obtain signatures on a petition as described in section 471." MCL 168.482d.
MCL 168.21. See also Const. 1963, art. 5, § 3.
Relevant to the instant appeals, the Secretary inquired about the constitutionality of the act's 15% cap on the number of signatures allowable per congressional district, the requirement for submitters to sort petitions by congressional district, and the obligation for submitters to include a good-faith estimate of the number of signatures. The Secretary also asked whether the requirements for paid signature gatherers to file an affidavit before circulating petitions and a disclosure on the face of the petition that a circulator is paid were constitutional and whether she retained the authority to set forth the petition form for statewide ballot proposals in light of the mandate in 2018 PA 608 that sponsors use a congressional district form rather than a countywide form.
On May 22, 2019, the Michigan Attorney General issued Attorney General Opinion No. 7310. In the opinion, the Attorney General stated that the 15% geographic requirement based on congressional districts violates the petition and amendment provisions of the state Constitution, neither of which limit the number of signatures collected from one geographic region. She also opined that the requirement for circulators to indicate on petitions whether they were paid did not further any asserted governmental interest and exposed the circulators to the risk of "heat of the moment" harassment, such that it was unconstitutional. The Attorney General additionally stated that no state interest was apparent regarding why the Secretary would need to receive an affidavit from the circulator regarding their paid status, particularly where the petitions will contain circulators’ addresses, and thus concluded that the affidavit requirement was not substantially related to Michigan governmental interests and was unconstitutional. The Attorney General concluded 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.
On May 23, 2019, plaintiffs League of Women Voters of Michigan, Michiganders for Fair and Transparent Elections, Henry Mayers, Valeriya Epshteyn, and Barry Rubin (collectively, the League of Women Voters) filed a complaint in the Court of Claims against the Secretary for declaratory and injunctive relief. In their complaint, the League of Women Voters asserted that the 15% cap on petition signatures from any one congressional district is an unconstitutional effort to amend the Constitution by legislation, violates the constitutional rights of free speech and association, and violates the right to petition. They further asserted that invalidation of signatures for technical circulator errors or omissions violates the same constitutional rights with respect to petition proponents and signers and also violates due process. These plaintiffs thus sought a declaration that the challenged provisions of 2018 PA 608 are unconstitutional and additionally sought a permanent injunction barring defendant and her agents, officers, and employees from enforcing or giving any effect to the challenged provisions.
On June 5, 2019, the Michigan Senate and Michigan House of Representatives (the Legislature) also filed a complaint in the Court of Claims for declaratory and injunctive relief against the Secretary. These plaintiffs challenged the May 22, 2019 opinion of the Attorney General finding certain provisions of 2018 PA 608 unconstitutional, and they sought declarations that 2018 PA 608 is constitutional and a valid exercise of the Legislature's authority and that the law must be implemented and enforced by the Secretary.
The plaintiffs in both cases filed motions for summary disposition in July 2019. The League of Women Voters moved for summary disposition in its action against the Secretary pursuant to MCR 2.116(C)(10), asserting that there is no genuine issue of material fact that 2018 PA 608 is unconstitutional in several respects. The Legislature likewise moved for summary disposition pursuant to MCR 2.116(C)(10), contending that there is no genuine issue of material fact that 2018 PA 608 is presumptively constitutional and further withstands any challenges to its constitutionality.
The Court of Claims consolidated the cases. In a July 29, 2019 order, the Court of Claims also ordered that any parties in either of the two cases before it, for purposes of judicial economy and the avoidance of unnecessary costs and duplication of effort, "shall be permitted to file motions and papers, argue in hearings, and otherwise participate in either of the consolidated cases, subject to any further orders of the Court." The League of Women Voters thereafter filed a second motion for summary disposition, this one against the Legislature pursuant to MCR 2.116(C)(6) and (10). The League of Women Voters asserted that the Legislature lacked standing to sue in the matter and that there was no genuine issue of material fact that 2018 PA 608 is unconstitutional.
After a hearing on all summary disposition motions, the Court of Claims issued a single opinion and order addressing all of the issues raised in both matters. At the outset, the Court of Claims determined that the Legislature had no standing to sue because it had not demonstrated a particularized injury such that it would be detrimentally affected by the outcome of the case in a manner different from the citizenry at large as is required to pursue its complaint and that its complaint in Docket No. 19-000092-MZ therefore had to be dismissed. The Court of Claims, however, treated the papers submitted by the Legislature as amicus briefs in the matter initiated by the League of Women Voters.
The Court of Claims next determined that the 15% geographic limit set forth in 2018 PA 608 is unconstitutional on its face. The court reasoned that the Michigan Constitution contains a self-executing provision that reserves the power of the initiative and referendum process to the people and the state Constitution establishes requirements in terms of the number of signatures needed to invoke the respective processes—without any limits on where those signatures can be gathered. The court opined that the Legislature was not permitted to impose additional obligations or undue burdens, such as the 15% geographic limit, on the self-executing constitutional provision governing the initiative and referendum process. The court reached a similar conclusion with respect to the right of the citizenry to petition for constitutional amendment. The court further found that the 15% requirement in MCL 168.471 and other provisions in 2018 PA 608 relying on the 15% geographic requirement ( MCL 168.477(1) and MCL 168.482(4) ) could be and would be stricken from 2018 PA 608 and that the remainder of the act remained enforceable.
Next, the Court of Claims concluded that the requirement imposed on paid petition circulators in MCL 168.482(7) (requiring paid petition circulators to disclose their paid status on the face of petition sheets circulated to potential petition signers) does not substantially relate to a sufficiently important governmental interest and is therefore unconstitutional on its face. The court also found that this provision was severable from the remainder of 2018 PA 608.
The Court of Claims also found that MCL 168.482a, which requires paid petition circulators—but not volunteers—to file signed affidavits with the Secretary indicating that they will be paid to circulate a petition and to gather signatures, is not unconstitutional on its face. It found that the signature-invalidating provisions found in MCL 168.482a do not violate petition signers’ rights of free speech and free association, nor do they violate due process because they are content-neutral, nondiscriminatory, and represent merely a check imposed by the state on the integrity of the petition process.
In sum, the Court of Claims ordered that the League of Women Voters was entitled to summary disposition in the case they initiated with respect to their requests for declaratory relief: (1) the 15% geographic requirement in MCL 168.471 is unconstitutional—as are the sections of 2018 PA 608 related to the 15% requirement and/or congressional districts, see MCL 168.477(1) and MCL 168.482(4) ; and (2) the checkbox requirement in MCL 168.482(7) is unconstitutional. It ordered, however, that declaratory relief would not be entered in favor of the League of Women Voters concerning whether the affidavit requirement in MCL 168.482a(1) is unconstitutional on its face. The court further granted summary disposition in favor of the Secretary in that matter with respect to whether the signature-invalidation requirements contained in MCL 168.482a are unconstitutional. Finally, the court dismissed the Legislature's complaint due to its lack of standing.
Appeals ensued in both cases and this Court consolidated the matters for review. League of Women Voters of Mich. v. Secretary of State , unpublished order of the Court of Appeals, entered November 8, 2019 (Docket Nos. 350938 and 351073). This Court further allowed appellants in both cases to file briefs, motions, and other filings as if they were appellees in the others’ appeals (League of Women Voters of Mich. v. Secretary of State , unpublished order of the Court of Appeals, entered December 19, 2019 (Docket Nos. 350938 and 351073)), and ordered that the appeals would be decided on the briefs filed, without oral argument, unless otherwise ordered. League of Women Voters of Mich. v. Secretary of State , unpublished order of the Court of Appeals, entered December 20, 2019 (Docket Nos. 350938 and 351073).
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court's decision regarding a motion for a summary decision in a declaratory-relief action. See Mich. Ed. Employees Mut. Ins. Co. v. Turow , 242 Mich. App. 112, 114, 617 N.W.2d 725 (2000). The constitutionality of a statute presents a question of law, which also carries a de novo standard of review. GMAC LLC v. Dep't of Treasury , 286 Mich. App. 365, 372, 781 N.W.2d 310 (2009). And whether a party has standing is also a question of law subject to review de novo. Groves v. Dep't of Corrections , 295 Mich. App. 1, 4, 811 N.W.2d 563 (2011).
III. STANDING
On appeal, the Legislature contends that it has standing to pursue a declaratory judgment in these matters because it has an interest in having this Court uphold the legislation it has passed, has a real interest in the cause of action, and will be a vigorous advocate. Moreover, the Legislature asserts that it has a special right and substantial interest that will be detrimentally affected in a manner different than the citizenry at large. We disagree.
As an initial matter, this Court has jurisdiction over appeals by right "filed by an aggrieved party." MCR 7.203(A). Black's Law Dictionary (11th ed.) defines "aggrieved party" as "[a] party entitled to a remedy; [especially], a party whose personal, pecuniary, or property rights have been adversely affected by another person's actions or by a court's decree or judgment." "To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 291, 715 N.W.2d 846 (2006) (quotation marks and citation omitted).
Here the Legislature's arguments were fully considered and addressed by the Court of Claims, despite its holding that the Legislature had no standing. Indeed, the Legislature was permitted to file briefs in the League of Women Voters’ case in the Court of Claims and with this Court. The Legislature did not file a brief specific to the League of Women Voters’ case here, but its appellant's brief, which contained both captions and docket numbers, was docketed in the League of Women Voters’ appeal. The Legislature would therefore appear to derive no identifiable benefit in having this Court reverse the Court of Claims decision on the issue of standing. Accordingly, under the unique circumstances of these cases, the Legislature has had the opportunity to assert its arguments and is not an "aggrieved party" entitled to appeal the court's decision as of right under MCR 7.203. In the interest of thoroughness, this Court will nevertheless address the standing arguments proffered by the Legislature on appeal.
" ‘Standing is the legal term used to denote the existence of a party's interest in the outcome of the litigation; an interest that will assure sincere and vigorous advocacy.’ " Allstate Ins. Co. v. Hayes , 442 Mich. 56, 68, 499 N.W.2d 743 (1993) (citations omitted). When standing is at issue in a case, "the question is whether the person whose standing is challenged is a proper party to request adjudication of a particular issue and not whether the issue itself is justiciable." Id. (quotation marks and citations omitted). "[A] litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment." Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 372, 792 N.W.2d 686 (2010). "A plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties." Fieger v. Comm'r of Ins. , 174 Mich. App. 467, 471, 437 N.W.2d 271 (1988). Where a cause of action has not been provided by law, a plaintiff must have "a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large...." Lansing Sch. Ed. Ass'n , 487 Mich. at 372, 792 N.W.2d 686. Thus, a litigant may have standing if (1) the litigant has a special right that will be detrimentally affected in a manner distinct from the citizenry at large, (2) has met the requirements of MCR 2.605, or (3) when the Legislature has intended to confer standing on the litigant under a particular statutory scheme. Id.
2018 PA 608 does not create a specific cause of action or expressly confer standing on the Legislature to enforce the act's provisions.
In this matter, the Legislature filed a complaint for declaratory action pursuant to MCR 2.605. That rule provides, in pertinent part, that "[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted." MCR 2.605(A)(1). "An ‘actual controversy’ under MCR 2.605(A)(1) exists when a declaratory judgment is necessary to guide a plaintiff's future conduct in order to preserve [that plaintiff's] legal rights." UAW v. Central Mich. Univ. Trustees , 295 Mich. App. 486, 495, 815 N.W.2d 132 (2012). Where no actual controversy exists, a plaintiff does not have standing to bring a declaratory action. South Haven v. Van Buren Cty. Bd. of Comm'rs , 478 Mich. 518, 534, 734 N.W.2d 533 (2007). The plaintiff therefore has the obligation to show that an actual controversy exists.
Given the definition of "actual controversy" for purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgment is necessary to guide the Legislature's future conduct in order to preserve its legal rights. UAW , 295 Mich. App. at 495, 815 N.W.2d 132. The Legislature's authority to enact laws is separate and distinct from this Court's role in determining whether any law passes constitutional muster. These "rights" and obligations of the two separate branches of government will remain the same, no matter what the outcome in this matter, such that the preservation of the Legislature's legal rights is not at issue.
While the Legislature asserts that it is the only real party in interest in ensuring that Michigan laws are enforced and upheld when the Attorney General will not do so, and may therefore file a declaratory action pursuant to MCR 2.605, it has provided no authority or support for this position. This Court need not search for authority to sustain a party's position. Schellenberg v. Rochester Elks , 228 Mich. App. 20, 49, 577 N.W.2d 163 (1998). Moreover, we find the Legislature's position unconvincing.
Michigan appellate courts have not examined whether the Legislature as a whole has standing to challenge an Attorney General's opinion regarding the constitutionality of a statute. However, our Supreme Court has analyzed the standing issue in relation to individual legislators. In House Speaker v. State Admin. Bd. , 441 Mich. 547, 550, 495 N.W.2d 539 (1993), four legislators challenged the authority of the State Administrative Board to transfer funds between state departments. After the Governor asked the House and Senate Appropriations Committees to transfer funds, but the committees failed to act, the State Administrative Board transferred the funds. Id. at 552-553, 495 N.W.2d 539. Four individual members of the Legislature, two of whom were members of the House and Senate Appropriations Committees, and the Speaker of the House and Minority Leader of the Senate, who selected at least some members of the appropriations committees, brought a declaratory action, arguing that the statutory authority for the transfer was unconstitutional. Id. at 553, 495 N.W.2d 539.
In their complaint, the plaintiffs alleged that the transfer actions of the board reduced their effectiveness as legislators, nullified the effect of their votes, interfered with the authority of the plaintiffs as members of the House and Senate Appropriations Committees to approve or disapprove intradepartmental transfers, and diminished the effectiveness of two of the plaintiffs who, as leaders, appointed members of their party to positions on the respective appropriations committees. Id. at 554–55, 495 N.W.2d 539. Our Supreme Court noted that to establish standing, a legislator must overcome a heavy burden because "[c]ourts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government." Id. at 555, 495 N.W.2d 539. Therefore, plaintiffs who sue as legislators must establish that they have been deprived of a personal and legally cognizable interest peculiar to them individually, rather than assert a generalized grievance that the law is not being followed. Id. at 556, 495 N.W.2d 539.
Our Supreme Court ultimately concluded that only one of the four plaintiffs had shown a personal and legally cognizable interest peculiar to him because he, as a member of the House Appropriations Committee, had been deprived of his right to approve or disapprove transfers made by the State Budget Director. In contrast, the plaintiff on the Senate Appropriations Committee was without standing, as that committee actually had voted to approve the transfer, and that plaintiff was not suing regarding the effectiveness of his vote, but rather was suing "to reverse the outcome of a political battle that he lost." Id. at 561, 495 N.W.2d 539. The Court rejected as without basis the arguments of the remaining two plaintiffs that the board's action infringed upon their authority to appoint committee members and that it affected the Legislature's power to override a line-item veto. Id.
Applying the above legal framework to this case, the Legislature has a heavy burden to show that it has standing. There is no dispute that the Legislature would be a vigorous advocate, as it asserts. The question, however, is whether it has an interest that is distinct from that of the general public. Nothing in the text of 2018 PA 608 supports that the Legislature has a substantial and distinct interest in its enforcement.
Attempting to distinguish House Speaker , the Legislature argues that it did not lose a political battle and that it is not suing to reverse a legislative outcome. However, in light of the Attorney General's opinion, the Legislature is suing to reverse actions by the Secretary, a member of the Executive Branch. The Legislature is thus plainly challenging the actions of members of the Executive Branch. House Speaker stands for the proposition that courts should not confer standing in matters that have the real possibility of infringing upon the separation of powers.
To accept the Legislature's argument that it has standing here would open the door for the Legislature to seek a declaratory judgment whenever the constitutionality of a statute is challenged. Further, 2018 PA 608 was designed not to benefit the Legislature, but to amend the Michigan Election Law to set forth new requirements for voter-initiated petitions for ballot proposals and to invalidate signatures on noncomplying petitions. The Legislature simply has not shown that it has a special interest in voter-initiated petitions that differs from the citizenry at large.
The Legislature argues that it has an interest in upholding the legislation that it has passed. But here it is the role of the courts, not the Legislature, to determine whether 2018 PA 608 is constitutional. A legal ruling regarding the constitutionality of certain provisions of the act will not deprive the Legislature of personal and legally cognizable authority that is peculiar to those chambers alone. Though the Legislature is essentially asserting that 2018 PA 608 was not enforced in its entirety, that injury is not personal or unique to the Legislature. This is particularly so, given that once the votes of the legislators have been counted and the statute enacted, "their special interest as lawmakers has ceased." See Killeen v. Wayne Co. Rd. Comm. , 137 Mich. App. 178, 189, 357 N.W.2d 851 (1984). Moreover, the validity of any particular legislative member's vote is not at issue; the public act was duly enacted into law. Rather, here the issue is the constitutionality of new conditions for filing voter-initiated petitions, and it impacts Michigan voters who sign petitions.
Relying on our Constitution, the Legislature also argues that it has standing because it has the "exclusive constitutional authority to regulate elections in the State of Michigan." See Const. 1963, art. 2, § 4 and art. 4, § 1. While the Legislature is correct that it has certain authority to regulate elections in Michigan, it fails to acknowledge the people's authority to bring petitions, which is also constitutionally based. Const. 1963, art. 2, § 9 and art. 12, § 2. These specific constitutional provisions are explored more thoroughly in the next section. Suffice it to say that we are satisfied that the Legislature did not and does not have standing to bring a declaratory action in the matters at hand.
While the Legislature also argues that "[l]eaving the Court of Claims Opinion in place will result in a single member of the executive branch being able to exercise unchecked veto power over a bill that has already been passed and enacted into law," the Court of Claims analyzed the Attorney General's legal conclusions, this Court scrutinized those conclusions, and presumably, our Supreme Court will also consider the legal conclusions in the Attorney General's opinion. In light of that review process, it cannot be concluded that the Attorney General has "unchecked veto power" over 2018 PA 608.
IV. CONSTITUTIONALITY OF 2018 PA 608
A. 15% GEOGRAPHIC REQUIREMENT
2018 PA 608 amended the Michigan Election Law to add the following 15% geographic limit:
Not more than 15% of the signatures to be used to determine the validity of a petition described in this section shall be
of registered electors from any 1 congressional district. Any signature submitted on a petition above the limit described in this section must not be counted. When filing a petition described in this section with the secretary of state, a person must sort the petition so that the petition signatures are categorized by congressional district. In addition, when filing a petition described in this section with the secretary of state, the person who files the petition must state in writing a good-faith estimate of the number of petition signatures from each congressional district. [ MCL 168.471, as amended by 2018 PA 608.]
2018 PA 608 also amended the Michigan Election Law by indicating that signatures above the 15% geographic limit will not be counted by the Board of Canvassers:
The board of state canvassers may not count toward the sufficiency of a petition described in this section any valid signature of a registered elector from a congressional
district submitted on that petition that is above the 15% limit described in section 471.... [ MCL 168.477(1), as amended by 2018 PA 608.]
In addition, 2018 PA 608 requires petitions to indicate in which congressional district the people who sign the petition reside.
The Legislature argues that the requirements set forth above pass constitutional scrutiny and are valid means to ensure participation from voters within the entire state. The League of Women Voters, on the other hand, contends that the 15% cap violates the self-executing provisions of the state Constitution regarding ballot proposals and violates the rights to free speech, association, and petition. The Secretary agrees with the League of Women Voters.
In the context of a constitutional analysis, courts generally construe a statute as not violating the Constitution unless it clearly appears that the statute is unconstitutional. In re Int'l Transmission Co. , 304 Mich. App. 561, 569, 847 N.W.2d 684 (2014). "Further, when considering a claim that a statute is unconstitutional, the Court does not inquire into the wisdom of the legislation." Taylor v. Gate Pharm. , 468 Mich. 1, 6, 658 N.W.2d 127 (2003).
There are two general types of constitutional challenges. Whereas an "as applied" constitutional challenge considers the specific application of a facially valid law to individual facts, a "facial" constitutional challenge considers the plain language of the challenged provision (i.e., on its face). In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich. 1, 11, n. 20, 740 N.W.2d 444 (2007). Because 2018 PA 608 has yet to be enforced, the League of Women Voters’ arguments regarding the act constitute a facial challenge. See id. A facial challenge is a claim that the law is "invalid in toto—and therefore incapable of any valid application ...." Steffel v. Thompson , 415 U.S. 452, 474, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). In such a challenge, " ‘[t]he party challenging the facial constitutionality of an act "must establish that no set of circumstances exists under which the [a]ct would be valid." ’ " Straus v. Governor , 459 Mich. 526, 543, 592 N.W.2d 53 (1999) (citation omitted; second alteration in original).
To determine whether the 15% geographic limit survives a facial challenge, we first look to the constitutional provision at issue. Const. 1963, art. 2, § 9 governs initiative and referendum, providing, in pertinent part:
The people reserve to 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. The power of initiative extends
only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.
Constitutional initiative and referendum provisions, by which the people reserve to themselves a direct legislative voice, should be liberally construed to effectuate their purposes. Bingo Coalition for Charity--Not Politics v. Bd. of State Canvassers , 215 Mich. App. 405, 410, 546 N.W.2d 637 (1996). Significantly, Const. 1963, art. 2, § 9 is a self-executing constitutional provision. Wolverine Golf Club v. Secretary of State , 384 Mich. 461, 466, 185 N.W.2d 392 (1971) ( Wolverine Golf Club II ). A constitutional provision is deemed self-executing "if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced...." Wolverine Golf Club v. Secretary of State , 24 Mich. App. 711, 725-726, 180 N.W.2d 820 (1970) ( Wolverine Golf Club I ) (quotation marks and citations omitted). "Whether a constitutional provision is self-executing is largely determined by whether legislation is a necessary prerequisite to the operation of the provision." Id. at 725, 180 N.W.2d 820.
Const. 1963, art. 2, § 9 specifically reserves the initiative and referendum power to the people and further provides a specific numerical mechanism through which to invoke the initiative or referendum—by obtaining "petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected." 2018 PA 608, however, clearly and unequivocally provides an additional requirement in the form of an obligation to limit signatures from specific geographic locations: "Not more than 15% of the signatures to be used to determine the validity of a petition described in this section shall be of registered electors from any 1 congressional district." MCL 168.471, as amended by 2018 PA 608. It is settled law that the Legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St. Clair County Election Comm. , 334 Mich. 258, 265, 54 N.W.2d 425 (1952). Moreover, legislation supplementary to self-executing constitutional provisions " ‘must be in harmony with the spirit of the Constitution and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified.’ " Wolverine Golf Club I , 24 Mich. App. at 730, 180 N.W.2d 820, quoting State ex rel. Caldwell v. Hooker , 22 Okla. 712, 718, 98 P. 964 (1908). "Any statute which is both unnecessary for the effective administration of the initiative process and restrictive of the initiative right is unreasonable and thus unconstitutional." Id. at 735, 180 N.W.2d 820. Here, the 15% limitation is not in harmony with the spirit of Const. 1963, art. 2, § 9, which requires only a specified number of electors ’ signatures on relevant petitions. Further, the 15% cap limits, rather than furthers the exercise of the constitutional right, making it less available. It thus curtails the rights reserved.
We recognize that Const. 1963, art. 2, § 9 also provides that "[t]he legislature shall implement the provisions of this section." The stricture of that section is, however, simply "a directive to the legislature to formulate the process by which initiative petitioned legislation shall reach the legislature or the electorate." Wolverine Golf Club II , 384 Mich. at 466, 185 N.W.2d 392. The clear intent in this provision is "to limit the power of the legislature to that which is ‘necessary’ to the effective implementation of the initiative right." Wolverine Golf Club I , 24 Mich. App. at 735, 180 N.W.2d 820. Accordingly, while the Constitution places the duty of implementation of initiative and referendum provisions on the Legislature, it does so as an incident to the granting of a right to the people. Although administrative implementation is needed if the initiative process is to function smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict the constitutional right. "The spirit of the Constitution is not met if the rights it grants are unnecessarily impaired under the guise of implementation." Id.
Despite the clear limiting intent of the implementation language in Const. 1963, art. 2, § 9, the Legislature contends that this provision must be read in conjunction with Const. 1963, art. 2, § 4, and its broad delegation of power to the Legislature. Specifically, the Legislature directs us to Const. 1963, art. 2, § 4 (2), which states, in part:
Except as otherwise provided in this constitution or in the constitution or laws of the United States the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting....
The question here, however, is not whether the Legislature has the power to legislate; the question is whether the restrictions implemented by the legislation constitute an impermissible burden on the petition processes, the power over which the people reserved for themselves more than a century ago.
The opening language of Const. 1963, art. 2, § 4 (2), "[e]xcept as otherwise provided in this constitution," signals that the legislative power is not unfettered, but instead is subject to other constitutional provisions. A reading of the constitutional provisions that pertain to petitions does not suggest that the Legislature may impose a requirement to cap the number of voter signatures to be counted from a particular geographic region. To the extent that the Legislature cites its authority to enact certain specifications for petitions, such as font size, clerical matters such as that simply cannot be compared to the 15% cap on voters’ signatures promoted here.
Although the Legislature indicates that its goal in enacting the 15% limit was to ensure participation from voters in the entire state, participating in the voting process is a right held by the people —not an obligation to be forced upon them by some means. And the 15% cap violates the rights of Michigan electors to participate in the electoral process by potentially excluding some from the petition process. Though the Legislature also generally asserts that 2018 PA 608 was intended "[t]o preserve the purity of elections and guard against abuses of the elective franchise related to ballot initiatives," the Legislature does not explain any specific impurities or abuses to be remedied by the 15% cap. In Todd v. Boards of Election Comm'rs of Kalamazoo, Calhoun, Branch, Eaton & Hillsdale Cos., 104 Mich. 474, 483, 64 N.W. 496 (1895), our Supreme Court, quoting Justice Cooley's treatise on constitutional law, articulated the applicable standard courts are governed by in determining the constitutionality of acts passed by the Legislature to preserve the purity of elections. "All such reasonable regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballot-box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them are absolutely essential." Id. , quoting Cooley, Const. Lim. 602. While "the ‘purity of elections’ concept has been applied in different factual settings, it unmistakably requires ... fairness and evenhandedness in the election laws of this state." Socialist Workers Party v. Secretary of State , 412 Mich. 571, 598, 317 N.W.2d 1 (1982). Given its absolute cap on voters’ signatures among geographic districts, 2018 PA 608 cannot be characterized as setting forth an "evenhanded" restriction akin to the types of restrictions that have been upheld in the past. For example, in Consumers Power Co. v. Attorney General , 426 Mich. 1, 2-3, 392 N.W.2d 513 (1986), our Supreme Court addressed the constitutionality of 1973 PA 112, which instituted a rebuttable presumption that any signatures on petitions for constitutional amendments or initiative legislation that were made more than 180 days before the petition's filing date with the Secretary are stale and should be void. The statute's objective was to assure that only registered voters of Michigan could propose a constitutional amendment. Id. at 2-8, 392 N.W.2d 513. The restriction in that case can be considered closely aligned with its purpose to ensure that only Michigan registered voters signed petitions. In contrast, the objective of 2018 PA 608 has not been demonstrated to be closely related to the purity of the petition process. Further, here the 15% requirement is a ceiling, not a floor. Its effect would be to unconditionally deny untold numbers of registered voters the right to have their signatures counted, a fact that distinguishes it from the rebuttable presumption of staleness offered in Consumers Power .
Nothing in the plain language of Const. 1963, art. 2, § 4 provides a basis for the Legislature to control the number of voters’ signatures to be counted toward a ballot petition and to categorically restrict voters who sign above the 15% limit of 2018 PA 608. Fairness and evenhandedness would be served by allowing all electors in the state who wish to sign a petition to have their signatures count. In the absence of any reasonable, supported argument suggesting otherwise, we do not interpret the 15% cap as serving to preserve the purity of elections or guard against abuses of the elective franchise.
An important rule of constitutional construction "requires consideration of the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished ...." House Speaker v. Governor , 443 Mich. 560, 580, 506 N.W.2d 190 (1993) (quotation marks and citation omitted). And "the most instructive tool for discerning the circumstances surrounding the adoption of the provision is the floor debates in the Constitutional Convention record." Id. at 580-581, 506 N.W.2d 190. Significantly, the delegates to the 1961 Constitutional Convention considered adding a 25% geographic requirement to the Constitution. Proponents gave reasons similar to those offered here: to gain an informed electorate and to prevent placement on the state ballot matters of only very local interest. 2 Official Record, Constitutional Convention 1961-1962, p. 3200. Opponents stated that all signatures of voters should be equally counted, and the rule of "one person, one vote" should hold true for petition signers as well. The delegates voted down the geographic requirement. Id. pp. 3200-3201. The record makes manifest that the people specifically and deliberately chose not to add a geographic requirement to the Constitution. Had the people wanted to tie a geographic condition to the process, they would have done so. The constitutional provisions relating to petitions simply do not reference a geographic requirement that is tied to the power of initiative, referendum, or constitutional amendment, and a geographic component is clearly outside not only the language of the relevant constitutional sections but also the intent of the drafters of these sections. Differences of opinion on initiatives are commonplace and addressed, as they should be, through the voting process. Setting a 15% geographic limitation serves to take power out of the hands of the people and requires, in essence, a pre-vote of agreement in a certain number of congressional districts as to whether or not a matter should be put to a general vote. This places the cart before the horse and unduly burdens the initiative and petition process. That the process would be more difficult was unrebutted below, where the League of Women Voters filed affidavits with the Court of Claims detailing the myriad increased time and cost burdens imposed by the 15% geographic requirement.
We also note that the boundaries of congressional districts change every ten years and some districts have disappeared entirely throughout the years, providing yet more potential for confusion and added burdens associated with the 15% cap.
In reaching our decision, we ultimately need only reach back to the most basic principles set forth in Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177-178, 2 L. Ed. 60 (1803) :
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbid[d]en, such act,
notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
We hold that 2018 PA 608, specifically the provision in MCL 168.471 imposing a 15% geographic limit constitutes an unnecessary and unreasonable restraint on the constitutional right of the people to initiate laws. It is therefore unconstitutional. The same holds true for MCL 168.477 and MCL 168.482(4), involving the 15% geographic requirement. As a result of this holding, we need not consider the League of Women Voters’ alternative arguments on this issue.
B. CIRCULATORS
We next turn to the requirements set forth in 2018 PA 608 concerning petition circulators. Several parts of the act are at issue. First, MCL 168.482 provides, in relevant part:
(7) Each petition under this section must provide at the top of the page check boxes and statements printed in
12-point type to clearly indicate whether the circulator of the petition is a paid signature gatherer or a volunteer signature gatherer.
(8) Each petition under this section must clearly indicate below the statement required under subsection (7) and be printed in 12-point type that if the petition circulator does not comply with all of the requirements of this act for petition circulators, any signature obtained by that petition circulator on that petition is invalid and will not be counted.
2018 PA 608 also provides a criminal penalty for a false indicator of a circulator's status. Specifically, MCL 168.482c provides: "The circulator of a petition under section 482 who knowingly makes a false statement concerning his or her status as a paid signature gatherer or volunteer signature gatherer is guilty of a misdemeanor." Finally, MCL 168.482a(1) requires that "[i]f an individual who circulates a petition under section 482 is a paid signature gatherer, then that individual must, before circulating any petition, file a signed affidavit with the secretary of state that indicates he or she is a paid signature gatherer." If a paid circulator has not filed the affidavit, any signature obtained by the circulator is invalid, and if a circulator's petition does not meet the necessary requirements under § 482, any signature on that petition is invalid. MCL 168.482a(2) and (4).
The Court of Claims concluded that the checkbox requirement does not substantially relate to a sufficiently important governmental interest and is therefore unconstitutional. It upheld, however, the affidavit requirement. On appeal, the Legislature asserts that both requirements are constitutional, whereas the League of Women Voters asserts that neither is. We agree with the League of Women Voters. The First Amendment provides that Congress "shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const., Am. I. The Fourteenth Amendment makes that prohibition applicable to the states. See U.S. Const., Am. XIV. Where, as here, First Amendment rights are implicated, the Supreme Court has held that exacting scrutiny is applied.
In Meyer v. Grant , 486 U.S. 414, 415-417, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988), proponents of an initiative to amend the state of Colorado's constitution brought an action to challenge the constitutionality of Colorado's statutory prohibition against paying circulators of initiative petitions. The proponents sought a declaration that the statutory payment prohibition violated their First Amendment rights. Id. at 417, 108 S. Ct. 1886. On review, the Supreme Court noted that "[t]he freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." Id. at 421, 108 S. Ct. 1886 (quotation marks and citation omitted). It then stated:
The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication
concerning political change that is appropriately described as "core political speech." [ Id. at 421-422, 108 S. Ct. 1886 ]
The Supreme Court opined that the prohibition on paid petition circulators restricted political expression by restricting the number of people who would carry the sponsors’ message, thereby limiting the size of the audience, and would make it less likely that sponsors would obtain the necessary signatures, thereby limiting the odds that they could garner a statewide ballot proposal. Id. at 422-423, 108 S. Ct. 1886. It therefore determined that the statute involves a limitation on political expression subject to exacting scrutiny. Id. at 420, 108 S. Ct. 1886.
Ultimately, the Supreme Court found that the statute violates the First and Fourteenth Amendments. "[L]egislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. That principle applies equally to the discussion of political policy generally or advocacy of the passage or defeat of legislation." Id. at 428, 108 S.Ct. 1886 (quotation marks and citation omitted; bracket in original). "The Colorado statute prohibiting the payment of petition circulators imposes a burden on political expression that the State has failed to justify." Id. In reaching its conclusion, the Court rejected the state's claimed interest in protecting the integrity of the petition process, reasoning that the state had not shown that it needed to burden the sponsors’ ability to communicate to preserve that process. Id. at 425-426, 108 S.Ct. 1886. The Court also noted that the state had not offered evidence that a paid circulator would be more likely to pad signatures, and declined to make that presumption. Id. at 426, 108 S. Ct. 1886.
Similarly, in Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182, 186, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999), the Supreme Court reviewed conditions that Colorado statutes placed on the ballot-initiative process. Relevant to the instant matter, one of the conditions was the requirement that circulators wear identification badges bearing the circulator's name and whether the circulator was paid or was a volunteer. Id. Recognizing that "the First Amendment requires us to be vigilant in ... guard[ing] against undue hindrances to political conversations and the exchange of ideas," the Buckley Court held that the restrictions at issue "significantly inhibit communication with voters about proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions." Id. at 192, 119 S. Ct. 636. The timing of the disclosure, at the same time the circulator's political message was revealed, was of significant importance to the Buckley Court because it "forces circulators to reveal their identities at the same time they deliver their political message; it operates when reaction to the circulator's message is immediate and may be the most intense, emotional, and unreasoned." Id. at 198-199, 119 S. Ct. 636 (quotation marks and citation omitted).
Although the Buckley Court expressly declined to address the constitutionality of the paid/volunteer indicator on the badge (Buckley , 525 U.S. at 200, 119 S. Ct. 636 ), the concerns about the timing of disclosures a circulator may otherwise choose to keep private are no less compelling in circumstances where the status of the circulator is at issue.
Meyer and Buckley instruct that exacting scrutiny is applied to the core political speech at issue in this case. The exacting-scrutiny standard "requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest." Doe v. Reed , 561 U.S. 186, 196, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010) (quotation marks and citation omitted). For a statute or regulation to survive exacting scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Id. (quotation marks and citation omitted). When a law burdens core political speech, exacting scrutiny applies and the restriction is upheld "only if it is narrowly tailored to serve an overriding state interest." McIntyre v. Ohio Elections Comm. , 514 U.S. 334, 347, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). Moreover, when the government burdens speech, "the Government bears the burden of proving the constitutionality of its actions"; i.e., the government bears the burden of identifying a substantial interest and justifying its restriction. United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803, 816–17, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000).
Here, the Legislature has not articulated a specific state interest directly aligned with the mandate in 2018 PA 608 that petition circulators check a box regarding their paid or volunteer status. The Legislature instead has indicated that 2018 PA 608 in general was designed to increase transparency in elections and accountability for voters. Meyer , however, weighed the state's interest in the integrity of the petition but found it did not outweigh the restriction on the sponsors’ ability to communicate with voters.
The Legislature relies upon Citizens in Charge v. Gale , 810 F. Supp. 2d 916 (D. Neb., 2011), to support its position otherwise. Not only is this case not binding on this Court, we are not persuaded by the decision reached in that matter. Significantly, the Gale court made its determination concerning a law that burdened core political speech by placing the burden on the parties alleging a violation of their First Amendment rights: "Neither the plaintiffs nor the intervenors offered any significant or substantially credible evidence that the required language, color and type impaired their ability to obtain signatures." Id. at 928. This shifting of the burden was inappropriate given the clear mandate by the United States Supreme Court that, when First Amendment rights are implicated, "the Government bears the burden of proving the constitutionality of its actions." Playboy Entertainment Group , 529 U.S. at 816, 120 S.Ct. 1878.
"Although lower federal court decisions may be persuasive, they are not binding on state courts." Abela v. Gen. Motors Corp. , 469 Mich. 603, 607, 677 N.W.2d 325 (2004).
The checkbox requirement forces petition circulators to make disclosures to potential petition signers at the same time the circulators are delivering their political message and at a time "when reaction to the circulator's message is immediate and may be the most intense, emotional, and unreasoned." Buckley , 525 U.S. at 199, 119 S.Ct. 636 (quotation marks and citation omitted). This type of compelled disclosure discourages participation in the petition circulation process and inhibits core political speech. See id. at 192, 200, 119 S.Ct. 636. Again, for a statute or regulation to survive exacting scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Reed , 561 U.S. at 196, 130 S.Ct. 2811 (quotation marks and citation omitted). Where, as here, no real governmental interest has been asserted, let alone been proven, the circulators’ right to be free from potential "heat of the moment" harassment and to protect their privacy regarding their status as either a paid circulator or a volunteer, as well as the sponsors’ right to have circulators engage in discourse with voters, outweigh the state's generally stated interests in transparency and accountability. The Legislature has simply not demonstrated that the checkbox requirement in 2018 PA 608 is necessary to serve its vaguely asserted interests. To the extent that the Legislature contends that the checkbox is intended to inform the electorate of a circulator's paid or volunteer status, if any potential signer seeks such information, they could simply ask the circulator. "The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit." McIntyre , 514 U.S. at 348, 115 S.Ct. 1511. We hold that the checkbox requirement is not narrowly tailored to serve an overriding state interest. The checkbox requirement does not pass exacting scrutiny in this matter and is therefore unconstitutional.
We recognize that the checkbox appears to be a minor burden on circulators. However, even if this Court were to apply a lesser scrutiny, such as the sliding scale addressed in Citizens for Tax Reform v. Deters , 518 F.3d 375, 380 (C.A. 6, 2008), we would still find the checkbox requirement unconstitutional. Although the burden applies in equal force to both paid and unpaid circulators, the fact remains that the Legislature has offered no realistic justification for the burden, as is its obligation when burdening core political speech protected by the First Amendment.
We find that the same holds true for the affidavit requirement. Notably, 2018 PA 608 requires only paid petition circulators, but not volunteer circulators, to file an affidavit before circulating a petition and mandates that, if an affidavit is not filed, signatures collected by those circulators will not be counted:
(1) If an individual who circulates a petition under section 482 is a paid signature gatherer, then that individual must, before circulating any petition, file a signed affidavit with the secretary of state that indicates he or she is a paid signature gatherer.
(2) Any signature obtained on a petition under section 482 by an individual who has not filed the required affidavit under subsection (1) is invalid and must not be counted. [ MCL 168.482a.]
As noted, 2018 PA 608 also provides a penalty for a false indicator of that status. The United States Supreme Court has clearly recognized First Amendment protections for paid petition circulators. In Meyer , the Supreme Court struck down Colorado's prohibition on the use of paid petition circulators. Meyer , 486 U.S. at 416, 428, 108 S.Ct. 1886. In Buckley , the Supreme Court rejected, on First Amendment grounds, portions of a Colorado statute requiring reports disclosing information regarding only paid petition circulators, including their names, their addresses, and the amounts paid to those circulators. Buckley , 525 U.S. at 201-204, 119 S.Ct. 636. The Supreme Court held that "[l]isting paid circulators and their income from circulation forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts." Id. at 204, 119 S.Ct. 636 (second alteration in original). The Supreme Court further held that the reporting requirements were "no more than tenuously related" to the substantial state interests that disclosure serves, and it ruled that to the extent that reports targeted paid circulators, they failed the exacting-scrutiny test. Id. Although Buckley is distinguishable because the legislation at issue in that case required the disclosure of the circulators’ names and other identifying information, the affidavit requirement here still makes circulators fulfill a requirement that their volunteer counterparts need not.
See MCL 168.482c.
The affidavit requirements do not simply target paid circulators, similar to the provisions struck down in Buckley , they also impose substantial burdens on paid circulators that are not shared by volunteer circulators. First, although 2018 PA 608 contains a definition of a "paid signature gatherer," there may be issues concerning the clarity of that definition. If circulators have any doubts regarding their status, they may not be aware of the need to file a precirculation affidavit. This could impinge on the voters’ right to political speech because the voters’ signatures on those circulators’ petitions would not be counted.
The statute indicates that a paid signature gatherer is "an individual who is compensated, directly or indirectly, through payments of money or other valuable consideration to obtain signatures on a petition as described in section 471." MCL 168.482d.
Second, as demonstrated from the affidavits in the lower-court record, time is of the essence in any petition campaign. The affidavit requirement will make sponsors’ political speech more difficult by increasing the time required in petition drives when paid circulators must file affidavits before circulating any petitions. Volunteer circulators would not, of course, be subject to the more limited time frame constraining paid circulators.
Third, the affidavit requirement for some circulators but not others based on whether work is paid will result in harsher treatment for organizations that must rely on paid circulators. See Riley v. Nat'l Federation of the Blind of North Carolina, Inc. , 487 U.S. 781, 799, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988) (explaining that a requirement applying to only paid personnel making charitable solicitations "necessarily discriminates against small or unpopular charities" that typically rely on professional fundraisers).
Given the fact that the affidavit must be submitted before signatures may be collected, and that it applies only to paid signature gatherers, it can be seen as imposing a significant burden on the right of political speech protected by the First Amendment. This Court must balance this burden against the state's interests in transparency and providing voters with useful information about the electoral process.
The Legislature has not shown why an affidavit relating to an individual circulator's status, rather than information from sponsors of a petition, would aid in serving the state's interests. It is beyond dispute that Michigan has an important interest in an orderly petition process. The Legislature, however, has presented very little basis for a conclusion that the requirement in 2018 PA 608 for a precirculation affidavit to be filed only by people who receive remuneration for their petition circulation is either necessary or substantially related to that interest. Indeed, the Secretary indicates in her appeal brief that under existing law, petitions must already contain the circulator's address and that "[i]t is not apparent ... why she would need, or be helped by, receiving the additional detail that a circulator is paid."
The Legislature has not shown that the state's interests are furthered by the disclosure requirement, which singles out only paid circulators and burdens the sponsors’ political speech by imposing a requirement that circulators must file an affidavit before obtaining signatures. The affidavit requirement is therefore unconstitutional.
V. SEVERABILITY
Having found certain portions of 2018 PA 608 unconstitutional, we must necessarily address whether such portions can be severed from the remainder of the act.
2018 PA 608 does not address severability. However, it is indisputable that courts have statutory authority to sever unconstitutional portions of statutes from the whole:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable. [ MCL 8.5.]
Moreover, it has long been held that courts will not invalidate an entire act if the offending provisions can be severed from the act. Avis Rent–A–Car Sys., Inc. v. City of Romulus , 400 Mich. 337, 348-349, 254 N.W.2d 555 (1977).
2018 PA 608 can be given effect without the 15% geographic requirement, the checkbox requirement, and the precirculation-affidavit requirement. There is and has been no argument otherwise. Therefore, sections relating to those requirements are stricken from the act. This Court affirms the Court of Claims ruling which struck the 15% geographic requirement in MCL 168.471, MCL 168.477(1), and MCL 168.482(4), as well as the checkbox requirement in MCL 168.482(7). We reverse the Court of Claims ruling that the affidavit requirement passes constitutional muster and strike the precirculation-affidavit requirement of MCL 168.482a(1).
Affirmed in part and reversed in part.
Gadola, J., concurred with Servitto, P.J.
Boonstra, J. (concurring in part and dissenting in part). For the reasons that follow, I concur with the majority opinion in concluding that the 15% geographic limit set forth in MCL 168.471 and the affidavit requirement of MCL 168.482a(1) and (2) are unconstitutional. I respectfully dissent, however, from the majority's decision to affirm the denial of standing to the Legislature in this case, and I would instead, at a minimum, exercise our discretion to fully entertain the Legislature's arguments in this matter. I also dissent from the majority's determination that the checkbox requirement of MCL 168.482 is unconstitutional. I further concur with the majority that the unconstitutional provisions are severable from the remainder of 2018 PA 608.
I. STANDING
Although the majority acknowledges that the Senate and House of Representatives (the Legislature) were permitted to file briefs both in the Court of Claims and in this Court, it nonetheless proceeds to hold that the Legislature lacks standing. I disagree with its decision to affirm the denial of standing to the Legislature in this case, and would instead, at a minimum, exercise our discretion to fully entertain the Legislature's arguments in this matter.
To properly address the standing issue, we must first consider the evolution of Michigan law on the subject. In Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 792 N.W.2d 686 (2010), our Supreme Court overruled its earlier decisions in Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 629 N.W.2d 900 (2001), and its progeny, and held that "Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan's longstanding historical approach to standing." Lansing Sch. Ed. Ass'n , 487 Mich. at 352-353, 372, 792 N.W.2d 686. It rejected the determination of those earlier cases that standing was a "constitutional requirement" and that "a lack of standing equated to the lack of a controversy necessary for the invocation of the judicial power under the Michigan Constitution." Id. at 365, 792 N.W.2d 686. It noted that "before Lee , from the [standing] doctrine's inception this Court has at times addressed a case's merits despite concluding that the parties lacked standing." Id.
The Court in Lansing Sch. Ed. Ass'n thus jettisoned the Lee Court's approach, and held that "Michigan's standing doctrine should be restored to an approach that is consistent with the limited, prudential approach used historically." Id. at 355, 792 N.W.2d 686. In describing that historical approach, the Court noted that "[s]tanding was a prudential limit, which is to say that the court's decision to invoke it was ‘one of discretion and not of law.’ " Id. (citations omitted). The Court thus concluded that under the restored, limited, prudential approach, "a litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment." Id. at 372, 792 N.W.2d 686. Moreover,
[w]here a cause of action is not provided at law, then a court should, in its discretion , determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant. [ Id. (emphasis added).]
In sum, the restoration of the limited, prudential approach to standing in Lansing Sch. Ed. Ass'n made it easier to establish standing, or at least transformed the previously existing requirement of standing into a discretionary consideration for the courts. I would exercise our discretion in this case so as to allow the Legislature's claim and to fully consider its arguments.
The Supreme Court in Lansing Sch. Ed. Ass'n also noted that "[t]he purpose of the standing doctrine is to assess whether a litigant's interest in the issue is sufficient to ‘ensure sincere and vigorous advocacy.’ " Id. at 355, 792 N.W.2d 686 (citation omitted). There can be little doubt that the Legislature satisfies that test in this case. The real question (apart from the discretionary consideration of whether to invoke the standing doctrine at all) is whether the Legislature also has "a special injury or right or substantial interest that would be detrimentally affected in a manner different from the citizenry at large." Id. at 359, 792 N.W.2d 686.
The circumstances of this case are unique. The duly elected Legislature enacted 2018 PA 608, and it was signed into law. The Secretary of State (the Secretary) subsequently declined to enforce aspects of that law, premised on the Attorney General's opinion that they were unconstitutional. The Legislature posits that it possesses a " ‘substantial interest’ in regulating elections in Michigan that is distinct from the general public," because it has a constitutional duty to "regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting." Const. 1963, art. 2, § 4 (2) and art. 4, § 1. Whether the Legislature is correct on the merits, i.e., whether its constitutional duty in that regard has been impaired, is not the question. That is because "the standing inquiry [is] distinct from the merits of the case." Lansing Sch. Ed. Ass'n , 487 Mich. at 356, 792 N.W.2d 686. Rather, the question is whether the Legislature has a "substantial interest that would be detrimentally affected in a manner different from the citizenry at large." Id. at 359, 792 N.W.2d 686.
The majority acknowledges that our state appellate courts have not addressed whether the Legislature as a whole has standing in circumstances such as this. It relies instead on House Speaker v. State Admin. Bd. , 441 Mich. 547, 550, 495 N.W.2d 539 (1993), in which four individual legislators challenged the authority of the State Administrative Board, under MCL 17.3, to transfer funds between state departments. The issue in that case was one of statutory interpretation, not of constitutional dimension. In concluding that only one of the four individual legislator-plaintiffs had standing, the Court distinguished the legislator's interest from that of the others by noting that he was "suing to maintain the effectiveness of his vote under the Management and Budget Act." Id. at 560-561, 495 N.W.2d 539. Similarly, in my judgment, the Legislature here is suing to maintain the effectiveness of its collective votes in enacting 2018 PA 608, which the Secretary is now declining (at least in part) to enforce.
I note that the Secretary argues that this is insufficient to confer standing, stating:
Just as "a generalized grievance that the law is not being followed" is not a sufficient injury to confer standing on an individual legislator, [ House Speaker ], 441 Mich. at 556, 495 N.W.2d 539, neither is it a sufficient "institutional injury" to support standing of the Senate and House as an institutional body. See, e.g.,
Virginia House of Delegates v. Bethune-Hill , [587] U.S. ––––, [––––,] 139 S. Ct. 1945, 1953[, 204 L.Ed.2d 305] (2019) (discussing legislative standing to defend constitutionality of statutes).
However, in "discussing legislative standing to defend [the] constitutionality of statutes" (as the Secretary describes the case) the United States Supreme Court in Virginia House of Delegates held only that "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." Virginia House of Delegates , 587 U.S. at ––––, 139 S. Ct. at 1953-1954 (emphasis added). Indeed, the Court distinguished the situation in Virginia House of Delegates (in which only a single House of a bicameral legislature brought suit) from the situation in Arizona State Legislature v. Arizona Independent Redistricting Comm. , 576 U.S. 787, 135 S. Ct. 2652, 192 L. Ed. 2d 704 (2015), "in which the Court recognized the standing of the Arizona House and Senate—acting together —to challenge a referendum that gave redistricting authority exclusively to an independent commission, thereby allegedly usurping the legislature's authority under the Federal Constitution over congressional redistricting." Virginia House of Delegates , 587 U.S. at ––––, 139 S. Ct. at 1953. In this case, of course, both houses of the bicameral Michigan Legislature, acting together, have brought suit. Notwithstanding the Secretary's reliance upon it, Virginia House of Delegates therefore actually supports the Legislature's claim of standing in this case.
Moreover, I find little solace in the majority's observation that "the Court of Claims analyzed the Attorney General's legal conclusions, this Court scrutinized those conclusions, and presumably, our Supreme Court will also consider the legal conclusions in the Attorney General's opinion." "Under our adversarial system, each party bears the responsibility for ensuring that its positions are vigorously and properly advocated," and " ‘parties frame the issues and arguments’ for the trial court." Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 382–83, 775 N.W.2d 618 (2009) (citations omitted). Courts do not function both as advocate and adjudicator. Yet, apart from the Legislature, there would appear to be no one to argue in opposition to the position taken jointly by plaintiffs (in Docket 350938), the Secretary (defendant in both dockets) and the Attorney General (who is representing the Secretary in both dockets, premised on the Attorney General's own legal opinion), particularly within the attenuated time frame within which these issues must be decided in advance of the procedural run-up to the 2020 elections. This, to me, is troubling, and it counsels toward affording standing to the Legislature in this circumstance or, at a minimum, toward exercising our discretion under the restored, limited, prudential approach to standing of Lansing Sch. Ed. Ass'n , so as to fully entertain the Legislature's arguments in this matter.
According to the Legislature, this case represents an "incredibly rare" circumstance in which "the Attorney General ... refuse[s] to defend a statute and instead ... affirmatively attack[s] it. Historically, even when the Attorney General disagreed with a policy embodied in the statute, the Office of the Attorney General would set up a conflict wall and appoint assistant attorneys general to argue both sides of the dispute. In that way, there were always attorneys defending the Legislature's enactment." See also MCL 14.28 ("the attorney general shall also, when requested by ... either branch of the legislature, ... intervene in and appear for the people of this state in any ... court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested."). Had the Attorney General followed that procedure in this case, the standing issue would be moot and much angst and gnashing of teeth could have been avoided.
For these reasons, I dissent from the majority's decision to affirm the denial of standing to the Legislature in this case and would instead, at a minimum, exercise our discretion to fully entertain the Legislature's arguments in this matter. II. CONSTITUTIONALITY OF 2018 PA 608
A. 15% GEOGRAPHIC REQUIREMENT
I concur in the majority's determination that the provision in MCL 168.471 imposing a 15% geographic limit is unconstitutional. Put simply, in order to interpret our Constitution as a cohesive whole, the Legislature's constitutional authority must be read in a manner that is consistent with other constitutional provisions and limitations. AFSCME Council 25 v. State Employees’ Retirement Sys. , 294 Mich. App. 1, 9, 818 N.W.2d 337 (2011). Specifically, Const. 1963, art. 2, § 9 states in part:
To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. [Emphasis added.]
Although Const. 1963, art. 2, § 9 expressly imposes numerical requirements for petition signatures required for initiative or referendum, it says nothing about limiting the percentages of those petition signatures per congressional district, or otherwise. Indeed, a geographic-limitation proposal was presented to the 1961 constitutional convention and, wisely or not, it was rejected. Although the Legislature has constitutional authority to "enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting," Const. 1963, art. 2, § 4 (2), that authority is limited by its own terms. See id. (stating that the Legislature has this authority "[e]xcept as otherwise provided in this constitution or in the constitution or laws of the United States...."). It therefore remains subject to the limitations that are inherent in Const. 1963, art. 2, § 9.
I conclude that where, as here, the Constitution speaks to the initiative and referendum process and provides specific numerical percentages for the petition signatures required for initiative or referendum, and where the convention that adopted that Constitution specifically rejected a proposal for additional requirements akin to the 15% limitation of MCL 168.471, such a proposal may only be accomplished by way of constitutional amendment, not by legislation. Consequently, I concur with the majority that the 15% geographic limit of MCL 168.471 is unconstitutional.
B. CHECKBOX REQUIREMENT
I disagree with the majority's treatment of the checkbox requirement of MCL 168.482, and therefore dissent from that portion of the majority's opinion. I would instead hold that requirement to be constitutional.
MCL 168.482 sets forth various requirements for the size, form, and content of a petition for constitutional amendment, initiative, or referendum, and pertinent to this appeal, provides, in part:
(7) Each petition under this section must provide at the top of the page check boxes and statements printed in 12-point type to clearly indicate whether the circulator of the petition is a paid signature gatherer or a volunteer signature gatherer.
(8) Each petition under this section must clearly indicate below the statement required under subsection (7) and be printed in 12-point type that if the petition circulator does not comply with all of the requirements of this act for
petition circulators, any signature obtained by that petition circulator on that petition is invalid and will not be counted. [ MCL 168.482.]
I am unpersuaded that the checkbox requirement is unconstitutional. This is so particularly because the requirement applies, even-handedly, to both paid and volunteer circulators. And I do not find the cases relied upon by the majority compelling in the current context.
In Meyer v. Grant , 486 U.S. 414, 415-416, 428, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988), the United States Supreme Court considered a Colorado statute that prohibited the payment of circulators of initiative petitions, and the Court concluded that the blanket prohibition unconstitutionally limited political expression. Nothing akin to that exists in this case.
In McIntyre v. Ohio Elections Comm. , 514 U.S. 334, 338 n. 3, 357, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Supreme Court held unconstitutional an Ohio statute that prohibited the distribution of anonymous campaign literature; in other words, the statute required that campaign literature contain the name and address of the person or campaign official issuing the literature. This case presents no such requirement.
Similarly inapt is the majority's citation of Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999). In Buckley , the Supreme Court struck down a Colorado statute that required circulators to wear identification badges bearing the circulator's name, concluding that the requirement "discourages participation in the petition circulation process by forcing name identification without sufficient cause." Id. at 200, 119 S. Ct. 636. As the majority acknowledges, however, the Court expressly declined to address "whether the additional requirements—that the badge disclose the circulator's paid or volunteer status, and if paid, by whom—‘would pass constitutional muster standing alone.’ " Id. (citation omitted).
In this case, by contrast, 2018 PA 608 contains no requirement that a petition circulator disclose his or her identity. Indeed, it contains only one portion of the "additional requirements" whose constitutionality the Court in Buckley declined to address. Buckley does not support a finding of unconstitutionality here.
Finally, the majority cites United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803, 811–12, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000), in which the Supreme Court held unconstitutional a statutory content-based restriction on cable television transmissions. No content-based speech restriction is at issue in this case.
In sum, the checkbox requirement of MCL 168.482 applies equally to paid and volunteer circulators. It does not compel circulators to provide their name (or address), prohibit any component of speech, or restrict the content of speech. Indeed, the requirement would seem to promote full information and transparency with prospective voters and petition signers. The Legislature additionally cites the "small burden on First Amendment activity" imposed by the checkbox requirement, "coupled with an important and well-established governmental interest to which the disclosure requirement is substantially related," i.e., deterring election fraud. Libertarian Party of Ohio v. Husted , 751 F.3d 403, 418 (C.A. 6, 2014) (affirming the denial of a preliminary injunction of an Ohio statute that required circulators to provide the names and addresses of their employers). I note, however, that unlike the statute at issue in Husted , the checkbox requirement in this case does not require circulators to disclose information identifying their employers. I perceive no basis for assuming that the checkbox requirement would induce "heat of the moment" harassment. I would hold it to be constitutional. See Toll Northville Ltd. v. Northville Twp. , 480 Mich. 6, 11, 743 N.W.2d 902 (2008) ("Statutes are presumed constitutional unless the unconstitutionality is clearly apparent.").
The Sixth Circuit in Husted distinguished its earlier precedent in Citizens for Tax Reform v. Deters , 518 F.3d 375 (C.A. 6, 2008) (which had struck down a statutory prohibition on paying circulators on a per-signature or per-volume basis), finding "no convincing evidence that the employer disclosure requirement at issue in this case would significantly diminish petition circulation, if at all." Husted , 751 F.3d at 420.
C. AFFIDAVIT REQUIREMENT
I join the majority, however, in concluding that the affidavit requirement of MCL 168.482a(1) and (2) does not survive constitutional scrutiny. Unlike the checkbox requirement, the affidavit requirement is targeted only toward paid circulators and therefore is not evenly applied. It mandates that the required affidavits be filed before petition signatures are gathered. And it disenfranchises voters who signed a petition without the required precirculation affidavit being filed—but, again, only for petitions circulated by paid circulators. While a more even-handed affidavit requirement imposing different timing requirements for the filing of the affidavits might survive constitutional muster, I conclude that this one does not.
III. CONCLUSION
For all of these reasons, I concur with the majority opinion in concluding that the 15% geographic limit set forth in MCL 168.471 and the affidavit requirement of MCL 168.482a(1) and (2) are unconstitutional. I respectfully dissent, however, from the majority's decision to affirm the denial of standing to the Legislature in this case and from its determination that the checkbox requirement of MCL 168.482 is unconstitutional. I further concur with the majority that the unconstitutional provisions are severable from the remainder of 2018 PA 608.