Stand Up for Democracy — that’s the formal name of the Ballot Question Committee filed late last Spring with the Michigan Secretary of State’s office which allowed the then nascent, and now burgeoning statewide grassroots coalition to move forward with the arduous petition process for a referendum on Public Act 4 of 2011, commonly known as The Emergency Manager Law.
They immediately found themselves in a logistics pickle when it came to the printing of the petitions themselves. Michigan law required them to print the Emergency Manager Law, in it’s entirety, on each and every petition. PA-4 is a very long law. The legal-sized petitions ended-up being a four and a half page fold-out, printed front and back. (see above photo)
The next hurdle came when they learned that a referendum was just not as “sexy” a prospect for the voters as a recall. Everyone understands a recall, and has a clear idea of where they stand on them, but not so the plain-jane, ho-hum referendum. Petitioners heard this same response ad nauseum: “A referendum on the what? I’ve never heard of an emergency manager. What’s a referendum? Is that anything like a recall?”
This was clearly going to be a long fight.
They needed 161,305 signatures, but knew that would not be enough. Political forces in the state would comb-through them and disqualify as many as they possibly could, so the coalition decided to collect a lot more, and they did. Each petition had to be differentiated by county, and with 83 counties in the State, their clipboards groaned from the bulk. But eventually they prevailed, and on February 29th of 2012, the coalition turned in 226,637 signatures.
So, what happens now?
This issue has a lot of moving parts, and is fraught with many uncertainties and variables that intertwine and effect each other at every turn often in unpredictable ways. There are multiple layers and players, all coming at it from different angles.
Here are some of the key components to watch:
WHAT HAPPENS WITH THE PETITIONS?
What can we expect to happen with the submitted petitions, and how will the referendum move forward?
The State has 60 days in which to verify the signatures. They start by conducting a sampling to determine the “spoil rate” to get a rough idea of how many signatures are possibily not valid. The spoil rate will be very low compared to other petition drives –the grassroots group gathering signatures was all volunteer — no paid petitioners. Each signature gatherer was dedicated to getting it right. They were very passionate about democracy in the state of Michigan. Additionally, the coalition was self-checking the signatures to the voter database, to ensure they had enough.
Step two is where politics come into play. There are forces in the State that wish to see the petition drive fail. They will take all 226,637 signatures to an outside firm, likely a law firm who specializes in these things, to have them compare each and every signature to the database. They will be charged with the task of disqualifying as many as they can.
Once that process is complete, the referndum will have a spot on the November ballot and PA-4 will be “frozen”.
WHO IS IN CHARGE NOW…IS IT THE EXISTING EMERGENCY MANAGERS?
Here’s where everbody has an opinion…some say they will revert back to PA-72 of 1990, the old Emergency Financial Manager Law, others say no, enacting PA-4 repealed PA-72, it’s gone, period. The question will ultimately land on Michigan Attorney General Bill Schuette’s desk, and he will render an opinion. Will that opinion be informed by his personal politics? It certainly wouldn’t be the first time an A. G. behaved politically.
Here’s Schuette’s press statement from the day the petitions were submitted to the State:
“Until the petitions are ultimately certified as sufficient by our state election officials, Public Act 4 of 2011 will remain in effect….If the petitioners achieve the proper certification, Public Act 4 will be suspended pending the outcome of the referendum vote in November and the previous state law governing emergency financial managers, Public Act 72 of 1990, will govern in the interim.”
If he officially rules that PA-72 stands (which appears likely), then the sitting Emergency Managers would lose the bulk of their dictatorial powers, and they would be required to work more closely with local elected officials.
If, on the very off-chance, he ultimately rules that PA-72 is repealed, OR if a ruling in favor of PA-72 is effectively challenged, and a lower court issues an order to block sitting Emergency Managers, then we can expect some theatrics out of the Snyder Administration, and in particular from State Treasurer Andy Dillon. We will likely hear more of the alarmist statements that have already been made about how this will cause chaos and rioting in the streets if Emergency Managers aren’t in control. This argument is particularly insulting and disturbing due to its racially-charged and divisive tone. (Emergency Managers are predominantly in place in communities of color.)
In the vacuum of a governing law, which appears unlikely, we can expect Michigan lawmakers to act quickly to create a stop-gap measure that will grandfather-in the sitting Emergency Managers, and probably contain some minor concessions curtailing the full dictatorial powers granted under PA-4. Their draft law, SB 865, provides for a committee structure, as opposed to an individual Emergency Manager.
We shouldn’t rule out the possibility that they may opt to pass a stop-gap even if PA-72 is in effect as the law. Every contingency is in the hopper right now.
There are those that worry that the legislature will make an end-run by passing a new Emergency Manager Law altogether, just like PA-4, but with a different number, and that they might then attach an appropriation to the new law, making it referendum-proof. While Michigan lawmakers are legally capable of such a heinous machination, my feeling is the Snyder Administration will indicate, through closed channels, a lack of support for this nuclear option. A new recall Snyder effort is about to be launched, and he doesn’t want 226,637 people ready to sign that petition on day one.
Whichever way the AG rules and the lawmakers behave, expect to see litigation challenging it all the way to the Michigan Supreme Court. Speaking of which…
WHAT ABOUT THE CONSTITUTIONAL CHALLENGE TO PA-4?
The Sugar Law Center filed a Constitutional challenge to PA-4 on behalf of 28 Michigan residents. Governor Snyder subsequently requested an expedited ruling from the Michigan Supreme Court, attempting to by-pass the lower courts. The high court has not yet agreed to hear the case, but they did hear arguments on why they should or should not hear the case.
This can go several ways. Michigan’s Supreme Court has a 4 to 3 conservative majority, and they are not moderate conservatives by any stretch, they are rabid. But that doesn’t automatically mean they will jump at the opportunity to aid Governor Snyder. This is a United States Constitutional question — that means if they rule in favor of PA-4, the case is likely destined for the U.S. Supreme Court. Michigan’s high court already has a very bad reputation for violating both the state and U.S. Constitutions, so they don’t want to have their decision revisited by a higher court, especially if there is a good chance they will be overturned.
So, they may decide to take a pass on this political hot potato until they know if the referendum overturns the law and renders the question moot. Or they may opt to take the case but keep it off the docket til after the general election.
While we’re at it…let’s also play the devil’s advocate and run the worst-case scenario here too: The Michigan Supreme Court could take-up the case and rule PA-4 to be perfectly constitutional right before the November election. Over the top, but possible.
HELP FROM THE U.S. ATTORNEY GENERAL?
Several months ago, U.S. Rep. John Conyers sent a letter to Attorney General Eric Holder requesting a review of the constitutionality of two aspects of PA-4. Specifically, the questions center on the Contract Clause as it relates to an Emergency Manager’s authority to unilaterally void contracts and on Article 4, Section 4 which provides for a republican form of government.
Rep. Conyers is the ranking Democrat on the House Judiciary Committee which recently rendered a report on Michigan’s Emergency Manager Law. The findings were not surprising — PA-4 appears to be unconstitutional and is harmful to the communities it is imposed upon. The report additionally offers some suggestions on how to remedy many of Michigan’s fiscal problems without violation of the democratic process. Whether this report is taken seriously remains to be seen. We have all watched in shock as the Obama administration turned a blind-eye to the horrific assaults on democracy taking place at the state level. I wouldn’t hang my hat on getting any help from Washington now either.
WHAT’S THE ALTERNATIVE TO AN EMERGENCY MANAGER ?
An important question! The short answer is “democracy”, however as responsible citizens the people of Michigan absolutely must engage in the important conversation about real and democratic ways to work through the serious and looming fiscal crisis that threatens the entire state. I recently outlined some first steps in that direction. And Rep. Conyers wrote a thoughtful piece in the Free Press that advised Michigan’s leaders to adopt a cooperative tone in this conversation rather than engaging in retaliatory legislation and litigation.
There are those that warn that the immediate alternative, bankruptcy court, would be a disaster. However, the methodology being employed by the sitting Emergency Managers is much more corrosive, damaging, and divisive. For all the “tools” this law has given them to solve problems, each and every one of them has resorted to the only real skill they have –“cut-back management”. These Emergency Managers come from the corporate world and know little of solving the systemic structural problems found in the public sector.
In a recent op-ed piece, Chris Savage, from Eclectablog, accurately compared and contrasted a bankruptcy judge to an Emergency Manager. Voter understanding of the differences between the two will be important as the referendum nears. The Snyder administration will attempt to sell Emergency Manager’s as the more benevolent option, which simply has not proven to be true.
Thoughtful and calm voices of reason are what Michigan needs more of to move forward productively and democratically — they can do without the continued threats and tantrums from its lawmakers and governor.
One thing we can be certain of is… the next few months will be interesting ones.
Amy Kerr Hardin