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Attorney General Opinion States Signature Collection Reforms Unconstitutional

May 24, 2019

In her most recent opinion, Attorney General Dana Nessel determined that portions of Public Act 608 of 2018, which made changes to laws governing signature collections, is unconstitutional. Passed at the end of the last session, the reforms were controversial throughout the process. After taking office, Secretary of State Jocelyn Benson requested an opinion on the legality of the law.

The aspects of the law the opinion found unconstitutional include:

    • Under Michigan’s Constitution, advocates to adopt or reject laws or to propose constitutional amendments must gather signatures on petitions to get those proposals on the ballot.   P.A. 608 added a new limit by requiring that no more than 15% of the total number of signatures counted in support of a petition can come from any one of Michigan’s 14 congressional districts. The Attorney General found the new requirement to be unconstitutional because it creates an obstacle for voters.
    • To accommodate the new 15% signature limitation by Congressional district, P.A. 608 required the Secretary of State to create petition forms based on congressional districts rather than counties. The opinion concluded that with the signature-by-district requirement having been found unconstitutional, the legislature would not have intended the use of district-based petition forms.
    • P.A. 608 requires that a paid signature gatherer file an affidavit with the Secretary of State indicating they are a paid signature gatherer before circulating any petition sheets and that any signatures obtained before that affidavit is filed are invalid. P.A. 608 also requires that the petition forms have a circulator disclosure statement that has “check boxes” on the form for the signature gatherer to indicate they are either a paid or volunteer gatherer. The opinion concludes that focusing on petition circulators rather than proponents of the petition, singling out paid circulators with a separate procedural hurdle, and requiring “check boxes’ are all new requirements that fail to withstand constitutional concerns aimed at preserving free-speech rights. 

There were aspects of P.A. 608 that Attorney General Nessel found to withstand constitutional concerns, including:

    • The new law states that if the circulator provides false or fraudulent information on the petition sheet, it invalidates all the signatures on the petition sheet. The new law also includes a general provision that any form or content mistakes invalidate all signatures on the sheet. The opinion finds that the substantial interest of the State in promoting the integrity of the process outweighs the potential burden imposed on petition sponsors and electors.
    • P.A. 608 establishes a mechanism for the Board of State Canvassers to set and approve the summary of the purpose of the petition and, if that is done, then the Board cannot later consider a challenge of the petition based on the summary – but it can take up to 30 days for the summary approval process to take place. While the Legislature likely intended to create a safe harbor limiting some challenges before the Board of State Canvassers, the opinion recognizes that this additional step is optional and need not be taken if proponents are concerned, they will have insufficient time to gather signatures. Consequently, the opinion concludes that this provision is constitutional.
    • P.A. 608 requires that a challenge to the Board of State Canvassers’ determination of petition sufficiency must be filed in the Michigan Supreme Court. The opinion finds that this requirement is constitutional but notes that the Supreme Court may choose to direct the challenge to the Court of Appeals.

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