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Michigan Court of Appeals Directs Board of State Canvassers To Certify Initiative Petition Asking For Repeal of Prevailing Wage Act

On May 11th, 2018, the Court of Appeals released their decision in Protecting Michigan Taxpayers v Board of Canvassers, ___ Mich App ___; ___ NW2d ___ (2018)(Docket No. 343566) directing the Board of State Canvassers to certify an initiative petition despite the fact that some of the petitions contained fraudulent residential addresses.

Protecting Michigan Taxpayers is a ballot committee seeking to repeal Michigan's prevailing wage law. The prevailing wage law is a half-century old statute that ensures that workers on state building projects are paid wage and benefits comparable to labor unions. Democrats support the law while conservative Republicans generally oppose it as a financial burden on the state. Despite the Republican party position, Governor Rick Snyder has publicly opposed the repeal of the prevailing wage law and would likely veto any legislative measure to pass it.

Protecting Michigan Taxpayers is seeking a repeal by getting around the governor and exercising its right to initiate legislation. To get a repeal question on the ballot through initiative, a group must secure the signatures of a least 8% of the number of registered voters that cast votes in the last gubernatorial election. Once the petitions are filed with the Michigan Secretary of State and the Michigan Board of State Canvassers, they must check their legal validity and certify them before the measure is passed to the Michigan Legislature. The Legislature has 40 days from receipt to enact or reject the proposed measure. If enacted, the measure becomes law and CANNOT be vetoed by the governor. If rejected or not acted upon, the measure goes before the voters as a ballot initiative. Protecting Michigan Taxpayers is hopeful that the Republican-controlled legislature would pass the repeal without the interference of Gov. Snyder or otherwise go before the voters.

Another ballot committee, Protect Michigan Jobs, was formed for the purpose of opposing the efforts of Protecting Michigan Taxpayers to repeal the measure. They intervened in the matter and reviewed the circulation petitions that were submitted to the state. Among other objections, they alleged that the circulators wrote down fraudulent addresses for voters such as motels, auto repair shops and vacant pieces of land. If their challenge was successful, Protect Michigan Jobs would disqualify 295 petition sheets and prevent the measure from being certified. Protecting Michigan Taxpayers responded by stating that the law does not require circulators to provide residential addresses in the first place. Nevertheless, the Board of State Canvassers agreed with Protect Michigan Jobs and rejected certification of the petition.

Protecting Michigan Taxpayers filed a mandamus action with the Michigan Court of Appeals, seeking an order compelling the Board of State Canvassers to carry out their official duties and certify the petition. The Court of Appeals determined the issue wasn't whether the residential addresses were required in the circulating petitions, but rather if the appropriate penalty includes striking the voter's signature.

MCL 168.544c(8) prohibits individuals from signing a petition with a different name than his or her own, making false statements on the petition or falsely signing the petition as a circulator when he or she did not actually circulate. Providing a fraudulent address on a petition may certainly qualify as a false statement punishable under this law. MCL 168.544c(9) states that the penalty for individuals violating these provisions is a misdemeanor conviction punishable by up to 93 days in jail or $500.00 fine, or both. However, the penalty DOES NOT explicitly include striking signatures or petition sheets.

The statute only allows the striking of voter signatures on petitions under two circumstances: (1) for signatures collected on a petition AFTER the circulator signs and dates a petition, or (2) fails to sign the petition altogether. However, the statute does not explicitly permit the striking of voter signatures because of incorrect addresses on the petition. The only enumerated penalty is to pursue misdemeanor convictions against the individual voters. Since Protecting Michigan Taxpayers had a sufficient number of signatures, incorrect addresses or not, the Michigan Court of Appeals ordered the Board of State Canvassers to certify the petition for submission to the Michigan Legislature.

Electoral laws tend to have very strict rules on the completion, submission and certification of nominating petitions or ballot initiatives. Being close may apply to horseshoes and hand grenades, but being close DOES NOT apply to the application of election law. For courts to do anything else but strictly apply the rules would suggest a slant towards one political position or another. Any personal politics aside, the Court of Appeals conducted its constitutional duty as an independent judiciary to evaluate both the actions of Protecting Michigan Taxpayers and the Board of State Canvassers to determine if said actions legally complied with the law. The principles of free democracy and fair elections demand no less.

UPDATE: The Michigan Supreme Court stayed the effect of this decision on May 15th, 2018 while the application for leave to appeal is pending.

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