Promote the Vote 2022 v. Bd. of State Canvassers

979 N.W.2d 188 (Mem)

PROMOTE THE VOTE 2022, Plaintiff,

v. BOARD OF STATE CANVASSERS, Secretary of State, and Director of Elections, Defendants,andDefend Your Vote, Intervening Defendant.

SC: 164755

Supreme Court of Michigan.

September 8, 2022

Order

On order of the Court, the motions for immediate consideration, to intervene, to file a reply, and of Voters Not Politicians to file a brief amicus curiae are GRANTED. The complaint for mandamus and declaratory relief is considered, and relief is GRANTED. We direct the Board of State Canvassers (the Board) to certify the Promote the Vote petition as sufficient for placement on the November 8 general election ballot by September 9, 2022.

The Board's duty with respect to petitions is "limited to determining the sufficiency of a petition's form and content and whether there are sufficient signatures to warrant certification." Stand Up for Democracy v Secretary of State , 492 Mich. 588, 618, 822 N.W.2d 159 (2012) (opinion by MARY BETH KELLY , J.). It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition was that it failed to include all the constitutional provisions that would be abrogated by the proposed amendments, as is required by Const. 1963, art. 12, § 2 and MCL 168.482. See Protect Our Jobs v Bd of State Canvassers , 492 Mich. 763, 822 N.W.2d 534 (2012). We disagree. Instead, we conclude that the proposed amendments would not abrogate any of the constitutional provisions identified by the challenger. The Board thus has a clear legal duty to certify the petition.

We further direct the Secretary of State (Secretary) to include the ballot statement for the Promote the Vote proposal drafted by the Director of Elections and approved by the Board when the Secretary certifies to county clerks the contents of the ballot for the November 8, 2022 general election.

McCormack, C.J. (concurring).

I agree with the Court's decision to grant the complaint for mandamus and declaratory relief and order the Board of State Canvassers (the Board) to certify the Promote the Vote petition for the ballot. I write separately to address one issue that ought to be clear but apparently isn't—the Board's role in certifying petitions is very limited. The Board's duty is to determine whether a petition has sufficient signatures and whether its form complies with statutory requirements.¹

There is no dispute about the signatures or form of this petition. Rather, the challengers believe that the petition violates Article 12, § 2 of the Michigan Constitution because its substance abrogates various provisions of the Constitution without publishing those provisions. This quintessential legal question is far outside the Board's legal role (and expertise). See, e.g., Protect Our Jobs v Bd of State Canvassers , 492 Mich. 763, 776-784, 822 N.W.2d 534 (2012) (determining the meaning of "alter" and "abrogate" in Article 12, § 2 ).

The challengers have a forum in which to have this objection addressed: court. See MCL 600.4401(1) ; MCR 7.203(C)(2).

Absent an insufficient number of signatures or a petition form that doesn't comply with unambiguous statutory requirements, the Board lacks the authority to refuse to certify a petition. Because the challenger here alleged neither of those defects, the Board had a duty to certify the petition. See Reproductive Freedom for All v Bd of State Canvassers , ––– Mich. ––––, 978 N.W.2d 854 (September 8, 2022) (Docket No. 164760) ; Mich. Civil Rights Initiative v Bd. of State Canvassers , 268 Mich. App 506, 520, 708 N.W.2d 139 (2005) ("Because there is no dispute that the form of the petition is proper or that there are sufficient signatures, we conclude that the board is obligated to certify the petition, and thus, breached its clear legal duty to certify the petition."). The Board's failure to do so seems to be disappointing evidence of the weakened state of our polity.

Bernstein, J. (concurring).

I acknowledge, as I must, that mandamus is an extraordinary remedy. I vote to grant mandamus relief today because of my consistent belief in the importance of elections in our representative democracy.² Throughout the years, I have voted to grant relief in a number of election cases. Rocha v Secretary of State , ––– Mich.. ––––, 974 N.W.2d 822 (2022) ( VIVIANO , J., dissenting) (joining Justice VIVIANO ’s dissenting statement that would grant the plaintiff's request for mandamus relief to be placed on the August 2022 primary ballot); Raise the Wage MI v Bd. of State Canvassers , 509 Mich.. –––, ––––, 970 N.W.2d 677, 678 (2022) ( BERNSTEIN , J., concurring in part and dissenting in part) ("I believe it is clear that a union label on an initiative petition is not subject to type-size requirements as set forth in MCL 168.482."); Attorney General v Bd of State Canvassers , 500 Mich. 907, 914, 887 N.W.2d 785 (2016) ( BERNSTEIN , J., dissenting) ("I would reverse the Court of Appeals rather than order expedited oral argument, as I believe that the Court of Appeals clearly erred. I write to further explain why I believe that appellant Jill Stein has met the statutory requirements for a recount.").³ In numerous other cases where the legal issue before us was less clear-cut, I have voted for either further consideration or oral argument, given my strong interest in making sure we get these cases right. See Johnson v Bd. of State Canvassers , ––– Mich. ––––, ––––; 974 N.W.2d 235, 239 (2022) ( BERNSTEIN , J., dissenting) ("Because I believe this case presents significant legal issues worth further consideration, I would order full briefing in this case and hold oral argument next week to ensure that the interests of Michigan voters are fully considered."); Markey v. Secretary of State , ––– Mich. ––––; 974 N.W.2d 255 (2022) (would have ordered oral argument); Craig v Bd. of State Canvassers , ––– Mich. ––––, 974 N.W.2d 240 (2022) (would have granted the bypass and ordered oral argument); Cavanagh v Bd of State Canvassers , ––– Mich. ––––; 974 N.W.2d 549 (2022) (would have ordered oral argument); Davis v Highland Park City Clerk , ––– Mich. ––––; 974 N.W.2d 550 (2022) ( WELCH , J., dissenting) (joining Justice WELCH ’s dissenting statement that would have found the legal issues worthy of further consideration); League of Women Voters of Mich v Secretary of State , 506 Mich. 886, 887-888, 946 N.W.2d 307 (2020) ( BERNSTEIN , J., dissenting) ("Because absentee ballots will undoubtedly play a significant role in the upcoming general election, I would hold oral argument in this case ahead of that election in order to ensure that the interests of Michigan voters are thoroughly examined and considered before votes are tallied, in order to avoid any potential disruption to the election process. The people of Michigan deserve nothing less."). I believe that my long-expressed interest in letting the people of Michigan make their own decisions at the ballot box speaks for itself. Accordingly, I join this Court's decision to grant mandamus relief.

Welch, J. (concurring).

I write separately to explain why I voted in favor of ordering the Board of State Canvassers (the Board) to certify the Promote the Vote petition. The Board's duty with respect to petitions is " ‘limited to determining the sufficiency of a petition's form and content and whether there are sufficient signatures to warrant certification.’ " Unlock Mich. v Bd. of State Canvassers , 507 Mich. 1015, 1015, 961 N.W.2d 211 (2021), quoting Stand Up for Democracy v Secretary of State , 492 Mich. 588, 618, 822 N.W.2d 159 (2012) (opinion by MARY BETH KELLY , J.). The Board preliminarily approved the form and content of the petition prior to circulation in February 2022, and that preliminary approval was not challenged in court. It is undisputed that there are sufficient signatures to warrant certification. In a postcirculation challenge to the petition before the Board, as well as before this Court, Defend Your Vote argued that the petition would abrogate Const. 1963, art. 2, §§ 2, 5, and 9 ; Const. 1963, art. 6, § 5 ; and Const. 1963, art. 7, § 8, and that the petition failed to republish these provisions as required by Const. 1963, art. 12, § 2 and MCL 168.482. Therefore, according to Defend Your Vote, the Board has a clear legal duty to withhold certification of the petition. I disagree. The proposed amendments will not abrogate any of the constitutional provisions identified by the challenger explicitly or by implication.⁴

"[A]n amendment only abrogates an existing provision when it renders that provision wholly inoperative." Protect Our Jobs v Bd of State Canvassers , 492 Mich. 763, 773, 822 N.W.2d 534 (2012). "An existing constitutional provision is rendered wholly inoperative if the proposed amendment would make the existing provision a nullity or if it would be impossible for the amendment to be harmonized with the existing provision when the two provisions are considered together." Id. at 783, 822 N.W.2d 534 (citation omitted). "Because any amendment might have an effect on existing provisions, the ‘abrogation’ standard makes clear that republication is only triggered by a change that would essentially eviscerate an existing provision." Id. at 782, 822 N.W.2d 534. "[W]hen the existing provision would likely continue to exist as it did preamendment, although it might be affected or supplemented in some fashion by the proposed amendment, no abrogation occurs." Id. at 783, 822 N.W.2d 534. "On the other hand, a proposed amendment more likely renders an existing provision inoperative if the existing provision creates a mandatory requirement or uses language providing an exclusive power or authority because any change to such a provision would tend to negate the specifically conferred constitutional requirement." Id. The amendments proposed by the Promote the Vote petition can be harmonized with existing constitutional provisions, and thus, the proposed amendments do not abrogate Const....