In 2018, the
Legislature changed Michigan’s initiative and referendum processes by imposing
certain requirements on the gathering of petition signatures for ballot
proposals. 2018 PA 608. Plaintiffs are a group of persons and organizations who
brought an action for declaratory relief in the Court of Claims challenging the
constitutionality of several aspects of PA 608. In a separate consolidated case,
the Michigan House of Representatives and the Michigan Senate sought a
declaratory judgment that PA 608 is constitutional in its entirety and must be
enforced. The Court of Claims determined that the House and Senate lacked
standing, and dismissed the case. It struck down as unconstitutional a
provision allowing no more than 15% of petition signatures for a statewide
ballot proposal to be obtained in any one congressional district. It also
determined that PA 608’s requirement that petitions include a box that must be
checked if the petition circulator is a paid circulator rather than a volunteer
is unconstitutional. It upheld a requirement that paid petition circulators
file an affidavit with the Secretary of State indicating that the person has
been paid to circulate a petition and gather signatures. Under PA 608, signatures
collected in violation of any of these requirements are invalid and may not be
counted. Appeals in both cases were filed in the Court of Appeals. Plaintiffs also
filed a bypass application in the Supreme Court, which was denied but the Court
ordered an expedited decision by the Court of Appeals. In a split published opinion,
the Court of Appeals held that the House and Senate lacked standing to sue, and
that all three challenged provisions of PA 608 are unconstitutional. One
judge concurred in part and dissented in part, stating that he would have
exercised discretion to entertain the Legislature’s arguments, and that the
“check box” requirement is constitutional. The Supreme Court has directed oral
argument on the application for leave to appeal and motion to intervene filed
by the House and Senate to address: (1) whether this Court should grant the
motion to intervene; (2) whether the Michigan Senate and Michigan House of
Representatives have standing to seek declaratory relief in the Court of
Claims; (3) whether the 15% cap on ballot proposal signatures per congressional
district in 2018 PA 608 is constitutional; and (4) whether 2018 PA 608’s
requirements that paid petition circulators file a pre-circulation affidavit
and check a disclosure box on the face of circulated petitions are
constitutional. Oral argument will be
held on March 11, 2020.