Some state lawmakers sue over ballot initiatives passed by voters

Nov. 5—LANSING — Eleven Republican state lawmakers last month filed a federal lawsuit, seeking to invalidate election-related ballot initiatives Michigan voters overwhelmingly approved in 2018 and 2022.

Two state senators and nine state representatives argue in court documents that such proposals, when passed by voters, result in state constitutional amendments that impact how and when elections are held, and therefore violate Michigan's Constitution.

It is the only state legislature which can make these decisions, the plaintiffs argue.

"The petition-and-state-ballot-proposal constitutional amendment ballot questions regulating times, places, and manner of federal elections violate the Elections Clause because the Michigan state legislature did not vote and approve it as required under the Elections Clause," the complaint, filed Sept. 28 in U.S. District Court states.

Michigan voters in 2018, approved transferring power to draw the state's congressional districts from the legislature to an independent redistricting commission 61.27 percent to 38.73 percent, and approved same-day voter registration, expanded absentee voting and automatic voter registration 66.9 percent to 33.10 percent, certified results show.

In 2022, Michigan voters approved changes to term limits and added a financial disclosure amendment by 66.45 percent to 33.45 percent.

Voters in 2022 also approved a nine-day early voting period, approved requiring photo ID or an affidavit signature for in-person voting or absentee ballot application, agreed that overseas and military ballots should be counted if they're postmarked by election day, and the state should provide funding for drop boxes, 59.99 percent to 40.01 percent.

Legislators who brought the lawsuit include state senators James Runestad and Jonathan Lindsey and state representatives James DeSana, Rachelle Smit, Steve Carra, Joseph Fox, Matt Maddock, Angela Riga, Josh Schriver, Neil Friske and Brad Paquette, court records show.

Defendants are Gov. Gretchen Whitmer, Secretary of State Jocelyn Benson and Jonathan Brater, director of the Bureau of Elections, court records show.

Plaintiffs cite a similar argument made in a 2019 North Carolina case, Moore v. Harper, which the U.S. Supreme Court, in a 6-3 vote, struck down in June.

"The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections," U.S. Supreme Court Chief Justice John Roberts said in the majority opinion issued June 27.

"State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era," Roberts said.

The US Constitution Elections Clause has given rise to the independent state legislature theory, which supporters say gives a state's elected legislators exclusive power to say when, where and how the state will hold its federal elections.

Under this theory, voter-approved amendments in any state are unconstitutional because they usurp the power of elected state lawmakers, which are then immune from review by courts.

The US Supreme Court, however, disagreed.

The Supreme Court has interpreted the word "legislature" in a broad way, which includes any entity or procedure that a state's constitution permits — such as voter-passed initiatives. Meaning, laws that regulate congressional elections may be enacted not only by a state's actual legislature, but also directly by a state's voters, in states like Michigan, that allow such procedures.

Attorneys for the Michigan Alliance for Retired Americans and two Detroit-based groups, Detroit Disability Power and the A Philip Randolph Institute, said those groups seek to intervene.

Intervening in a federal civil lawsuit, if approved by a judge, allows a third party to enter into an existing case in which they have a personal stake.

Attorneys for the proposed interveners say, in court documents, they represent a diverse group of Michigan voters who depend on the rights and voting procedures the lawsuit seeks to negate.

"Accordingly, with this lawsuit, Plaintiffs seek not only to eschew the will of Michigan voters at large, but also to further insulate themselves from having to answer to their own constituents."

The legislator/plaintiffs are being represented by attorneys with the Great Lakes Justice Center, a Lansing-based firm that has previously litigated in freedom of speech, religious liberty and pro-life related cases.