• Unscrupulous petition circulators are accused of untruths to get people to sign petitions to qualify initiatives for the ballot.
• It is not the role of government to regulate truthfulness. It is incumbent upon citizens to understand what they are signing before putting their names to it.
• Other states offer several means of helping citizens to understand the purpose of initiated petitions such as drafting the 100-word descriptions before signatures are gathered and including those descriptions on the petitions.

Even amidst the COVID-19 pandemic, special interests are working to initiate changes in state law by circulating petitions. This is their right under the 1963 Michigan Constitution. However, it is election season and allegations of misconduct by petition circulators have begun to emerge.  We have been down this road before.

In response to an increase in complaints of deceptive petition circulation filed with the state, on August 5, Attorney General Dana Nessel and Secretary of State Jocelyn Benson issued a joint statement admonishing the electorate that it is their responsibility to know what they are signing and calling for legislative reforms to the process. 

“Regardless of what your political stance is, I am urging anyone who is approached by a petitioner to carefully read and make every best effort to understand what you are agreeing to sign,” Nessel said. “The petition process is an important right that belongs to the people of this state, but these deceptive and dishonest practices are not being conducted in the spirit of a free and transparent democracy, one in which the power truly rests with an informed populace.” 

We dove deep into the topic of initiatives and referenda in our 2014 report, Reform of Michigan’s Ballot Question Process. While these were established as grassroot tools to keep citizens in charge of their government when their elected officials are unable or unwilling to act on their behalf, the increasing use of the initiative/referendum process by special interest groups has created unintended dynamics in the petition circulation stage of the process. Specifically, the frequent practice of compensating circulators for each signature collected has transferred the process from those who feel strongly about a cause to those motivated by profit to obtain as many signatures as possible.

Responsibilities of Self-Government

Allegations of deceptiveness in the petition process are not new. A notable occurrence of deceitful allegations was made against circulators of the Michigan Civil Rights Initiative (MCRI) petition in 2005. In January 2006, citizens from the Detroit, Lansing, Grand Rapids, and Flint areas provided evidence to the Michigan Civil Rights Commission (MCRC) of organized fraud committed by circulators of the MCRI petitions. 

As a result of the findings from these hearings, the Board of State Canvassers asked the courts to reconsider a previous court order to approve the petition for the November 2006 ballot. The motion for reconsideration asked that the Court consider the report prepared by MCRC which contended that a significant number of petition signatures were obtained by the circulators misrepresenting the measure as being “in favor of” affirmative action when in fact it was designed to constrain its use. 

The Court denied the reconsideration motion, citing a number of reasons that largely focused on the responsibility of the petition signers to know what it is they are signing. As the Court’s majority stated: “The signers of these petitions did not sign the oral representations made to them by circulators; rather, they signed written petitions that contained the actual language of the MCRI.” Specifically, the Court emphasized the civic duty of voters in a democratic government and the popular vote from the electoral process being the ultimate check on the petition process.

The majority stated:

In carrying out the responsibilities of self-government, ‘we the people’ of Michigan are responsible for our own actions. In particular, when the citizen acts in what is essentially a legislative capacity by facilitating the enactment of a constitutional amendment, he cannot blame others when he signs a petition without knowing what it says. It is not to excuse misrepresentations, when they occur, to recognize nonetheless that it is the citizen’s duty to inform himself about the substance of a petition before signing it, precisely in order to combat potential misrepresentations.

Further, the Court solidified that the responsibility of the signer to self-inform outweighs the oral representations, or alleged misrepresentations, of the circulators in exercising their right to political speech.

Legislating Truthfulness

In resolving whose responsibility it is to determine the truthfulness of a circulator’s assertions, the majority ruled:

A necessary assumption of the petition process must be that the signer has undertaken to read and understand the petition. Otherwise, this process would be subject to perpetual collateral attack, and the judiciary would be required to undertake determinations for which there are no practical standards and which essentially concerns matters of political dispute.

Thus, the Court has seemed to identify a shortcoming in Michigan’s petition initiation process. Though checks and balances are in place through regulatory bodies and the electoral process, ultimately, ‘we the people’ of Michigan have a crucial role to inform ourselves, and others, on the true intents and exact outcomes of a measure for, or on, the ballot. 

“For decades we’ve seen Michigan citizens intentionally deceived about ballot petitions, and particularly our most vulnerable populations,” Benson said. “The recent increase in complaints demonstrates it’s high time for the Legislature to act to make it a crime to intentionally mislead a voter into signing a petition.” 

Efforts to legislate truthfulness are not as easy as Secretary of State Benson suggests. Our nation was founded on the principle that government should not be the arbiter of truthful speech. Some might further argue that it is not the government’s job to save us from ourselves. 

Possible State Actions 

Other states have enacted policies in an attempt to limit the ability of proponents to pay petition circulators and to better notify potential petition signers of the professional efforts behind the cause. These actions are based on the precept that people would not sign petitions but for the aggressive actions of circulators and misinformation perpetuated about the ballot questions. The protection of free speech constrains the extent to which the state can limit the compensation of circulators.

States also have made efforts to identify, restrict, and regulate paid petition circulators, including provisions that:

• require petition circulators to be registered voters of the states in which they are circulating petitions;
• require petition circulators to be of a minimum age;
• require paid petition circulators to be identifiable to differentiate them from voluntary petition circulators; and
• restrict how proponents backing a signature gathering effort compensate the paid petition circulators.

In general, the courts have been reluctant to allow states to regulate circulators because the initiative is one of the truest expressions of free speech granted in the Bill of Rights. 

Making Citizens Informed Petition Signers

As an alternative to legislating truthful speech or regulating circulators, some states work to arm potential petition signers with information before they are approached by circulators. At least nine states have requirements to prepare objective information on ballot questions, such as pamphlets or online resources. 

Information can include ballot question summaries, fiscal notes, and statements that explain a ‘yes’ and ‘no’ vote. Six states have requirements that a fiscal statement, or fiscal note summary, be published on the petition form itself. These types of informative communications can be included in, or composed of, official voter guides prepared by a state agency (also referred to as voter pamphlets).

Additionally, once ballot questions are approved, 15 states require that the secretary of state or attorney general create pamphlets or disperse information to voters on state websites with ballot language, summaries of each ballot question, fiscal notes, and arguments for and against each ballot question. 

Michigan’s initiative and referendum processes have evolved in recent years with an eye towards informing citizens. The 100-word description of a question that used to be prepared after the petition was certified for the ballot is now prepared before the signature gathering begins and affixed to the petition. 

Further, the Michigan Secretary of State provides a virtual ballot in the Michigan Voter Information Center that contains ballot language; however, this effort still relies on the objective work of others – such as the Citizens Research Council of Michigan and the League of Women Voters – to explain to voters what the ballot questions mean and the result of a ‘yes’ or ‘no’ vote. This information is made available after the ballot questions are certified for the ballot.

Few would condone the acts of deceitful petition circulators. However, “we the people” must bear some of the responsibility to know what we are signing. Legislative reforms can help to know when petition circulators are scrambling for a buck by collecting signatures, but it is not the state’s role to legislate truthfulness. The state should continue to look for opportunities to play an active role in informing citizens at the front-end of the initiative and referendum process as opposed to after ballot certification.