Updated 10-30-15: The petition drive to repeal Michigan’s Prevailing Minimum Wage law has decided to relaunch a new effort, and to scrap the previous submission that is under fierce scrutiny. Citing problems with the process of both the gathering and validation of signatures, they have announced they will try again. Facing costly litigation of dubious outcome, they made an economic choice. It remains to be seen if they will actually petition again. They may have lost the necessary support in the legislature to compel lawmakers to bypass the voting process for the initiative to be enacted without a popular vote, as the Michigan Constitution allows. The reason behind the whole drive was to override Gov. Snyder’s opposition and veto authority.
The Devil’s in the Details — What the Media isn’t Reporting and Why the Legal Challenge May Fail
(Updated for content 10-27-15, see below)
Michigan law does not require petitioners to accurately state the nature of a petition to potential signers, although there are strict rules about other forms of misrepresentation in terms of the mechanics of the signing process.
Legal provisions of that nature are now being invoked by the group Protecting Michigan Jobs, asserting that over 100,000 signatures collected in the petition drive to repeal the Prevailing Minimum Wage law are invalid, thereby negating the ballot proposal. The union-bashing petitioners submitted about 390,000 signatures, with a requirement of under 253,000 needed to secure a place on the ballot. Challengers are claiming that people signed the petition multiple times.
Ironically, the legal challenge to the petition is spearheaded by none other than the same individual who championed the union-bashing Emergency Manager law. Yes, John Pirich is the same guy who failed with his 2012 challenge on the font size (font-gate) of the petition drive to repeal the Emergency Manager law. At the time, many viewed his challenge as a disingenuous attack on the democratic process.
The 2012 incident did spur the Secretary of State to clarify font requirements. This latest petition challenge is similarly tricky in terms of the law, and surely will spur the Secretary of State to toughen the rules again.
The effort to repeal Michigan’s Prevailing Minimum Wage law may well be on the rocks, but it all comes down to a review by the Michigan Board of State Canvassers. Backers of the petition drive paid $1.1 million to a Las Vegas organization to gather the signatures to put the initiated law on the ballot in 2016. The group, Protecting Michigan Taxpayers, padded the total to ensure they passed the standard sampling test of the Board of State Canvassers.
Accusations from a couple of months ago that petitioners were misrepresenting the intent of the petition may play heavily in the Board’s decision — but, not because of the most obvious reason. It was reported that paid petitioners were purported to be saying the petition was to “ensure transparency in government.” (I can personally verify I overheard a petitioner in Traverse City saying just that to a potential signer.)
Michigan law says that petitioners may not illegally certify a petition they did not personally circulate, and they may not knowingly allow someone to sign the petition twice. The law also provides that signers may not knowingly sign a petition more than once — that’s the catch that may create a legal mess. Signers could be found to have been under the impression that they signed two separate petitions — one for “transparency in government” and another to repeal the Prevailing Minimum Wage law, that’s a possible legal point.
Pirich asserts that more than 20,000 people signed at least twice, but the Board of State Canvassers could determine that the majority did so inadvertently. While several individuals were reported to have signed up to ten times, that fact may not play into the calculation as to whether to validate the numbers because a certain amount of deceit is present in all petition drives, including opponent’s attempts to sabotage the effort by invalidating entire pages this way.
Whatever the decision, Michigan voters will not see the question on their November 2016 ballot.
The petition drive itself was a complete farce — with its sole purpose being to allow the legislature to enact a veto-proof law based on gaining enough signatures, as they may do so according to the Michigan Constitution — meaning it will never go to a popular vote.
Since the GOP assumed control of the Michigan House nearly five years ago, they have abused this initiated law loophole as a matter of practice — effectively bypassing the democratic process two times out of the six occurrences in the past half century.
Michigan Senator Curtis Hertel Jr. (D-23) introduced legislation late last month designed to regulate and provide penalties for false statements made by petition gatherers on ballot questions and recall attempts. The bill would make it a misdemeanor for someone who “intentionally makes a false statement or misrepresentation concerning the contents” of a petition.
If enacted, it could create a litigation quagmire for all ballot question committees, forcing them to spend thousands fighting legal challenges. Protecting Michigan Jobs has already shelled-out $136,000 to Pirich for his services — clearly, challenging petitions is a lucrative pursuit for the lawyer, who incidentally is the former chair of the Michigan Board of Ethics, appointed by Gov. Snyder.
Update: It should be clarified that the Board of State Canvassers is an appointed body of four — two Republicans, and two Democrats, and therefore may deadlock the vote, as happened with the Emergency Manager petition certification. That spurred a court challenge that eventually led to the question earning a spot on the ballot, in spite of Pirich’s efforts otherwise. Initially, the Court of Appeals applied the “substantial compliance” rule to their order for certification. That ruling was subsequently rejected by the Michigan Supreme Court. However, in a 4 to 3 ruling, the high court instead found that the petitions fully complied with the letter of the law.
The precedent now is that there remains precious little, if any, grey area in the compliance decision process. The ruling took the whimsy out of the mix.
If the Prevailing Minimum Wage question similarly deadlocks (which it likely will), it too could end up in the courts. The precedent set by the Supreme Court could cut both ways though.
The Board of State Canvassers will employ the standard sampling test, and if the petitions are within compliance by that measure the board is compelled to certify. Otherwise, they would have to demonstrate that the petitions were absolutely not in compliance as to the number of valid signatures, meaning they would have to go through more than 50,000 pages of signatures and definitively disqualify roughly 140,000 signatures. That’s a tall order.
Either way, there are ten months for litigation, and plenty of money to be spent.