In a nutshell:

• Michigan’s initiative petition process allows for grassroots governance by providing a way for citizens to initiate constitutional amendments, statutory changes, and voter referendums.
• Michigan’s current process does not allow for any review of the substance of the proposal before signature gathering. This raises many issues, including confusion for voters, frequent court challenges, and general dissatisfaction with the process.
• Michigan should move to a front-loaded petition certification process with an application to circulate petitions, petition templates prepared ahead of time, and a formal process to provide input on the form and substance of initiated statutes and constitutional amendments before signature gathering begins. 

Michigan voters are faced with a long ballot as they are asked to weigh in on numerous federal, state, and local races. Additionally, in many election years, citizens are asked to vote on any number of statewide ballot proposals that may include constitutional amendments, initiated statutes, and voter referendums. 

So far in 2022, 15 different proposals are somewhere in the initiative petition process. Not all of these will make it to the ballot (and for some, the ballot is not the ultimate goal), but even if only a portion of these make it through the signature gathering process to get to the ballot, it will add to an already long ballot for electors. That is not necessarily a bad thing – the initiative petition process puts the ability to make changes to the state Constitution and law into the hands of the people – but the sheer number of proposals suggests the process should be reviewed to see if it is working as originally intended.

2022 Potential Ballot Proposals

Michigan’s initiative petition process

Michigan’s initiative petition process is not very stringent relative to the other states that allow for initiatives and referendums. The circulation period is relatively short, but Michigan law does not require an exceptionally high number of signatures for the ballot, nor are ballot question proponents required to obtain geographic diversity among the petition signers. It must be noted that advances in communication, transportation, and political engagement have made this tool of direct democracy much easier to exercise than it was when originally authorized a century ago.

Constitutional amendments must be approved by the voters. They can be proposed by a two-thirds vote of each house of the legislature or by an initiative petition. The petition must be signed by electors equal to at least 10 percent of the number of votes cast in the last gubernatorial election (425,059 valid signatures in 2022) and must be submitted by 120 days before the general election (July 11, 2022).

An initiated statute must be signed by electors equal to at least eight percent of the votes cast in the last gubernatorial election (340,047 valid signatures) and must be submitted by 160 days before the general election (June 1, 2022).

A voter referendum on an enacted law must be signed by electors equal to at least five percent of the votes cast in the last gubernatorial election (212,530 valid signatures) and must be filed within 90 days after the law is enacted. A legislative referendum may be attached by state lawmakers to any bill that is passed, except bills appropriating money, requiring voter approval to become law.

The Board of State Canvassers (BSC) is responsible for canvassing state-level ballot proposal petitions and certification of the signatures. Ballot issue proponents have the option of submitting draft petitions to the BSC before circulating those petitions to gather signatures, but state election law does not require pre-approval of the petition form. The responsibilities of the BSC are purely ministerial – they may weigh in on the form of the petitions, including formats, fonts and type size, placement of items, etc. The BSC may not consider the substance of proposals, the language used, or whether petitions correctly characterize those provisions of the Constitution that would be altered or abrogated by the proposal if passed. In fact, there is no process or authority for anyone in state government, or any other interested party, to assess the substance of proposals, including their constitutional or statutory legality.

State law was recently amended to require a summary of 100 words or less on the petition to gather signatures. This summary is drafted by the director of elections and approved by the BSC and must objectively describe the purpose of the ballot proposal.

Problems with Michigan’s process

The Research Council has been analyzing Michigan’s citizen initiative process for years. While it is important to maintain Michigan’s grassroots lawmaking power, the current process leads to a number of recurring problems.

First of all, while it is unknown how many of the 15-plus ballot proposals in discussion for 2022 will actually make it to the ballot, it is not uncommon for voters to be asked to weigh in on a lot of statewide ballot issues in an election year. The sheer number of proposals, plus the sometimes confusing advertising from proponents and opponents, can leave voters uncertain of the implications of their votes. 

Michigan Statewide Ballot Proposals by Year, 1964-2020

Note: A small number of proposals were on the ballot in non-general election years, but this chart highlights election year proposals

Source: Michigan Manual

Confusion for voters can be especially difficult if petition circulators are not always clear on what the proposal will do. While unscrupulous petition circulators have been accused of misrepresenting ballot proposals in the past, it is not clear what to do about it. It is not the role of the government to regulate truthfulness. Courts have largely focused on the responsibility of petition signers to know what they are signing. In one case, the majority stated “In carrying out the responsibilities of self-government, ’we the people’ of Michigan are responsible for our own actions.” While it is incumbent on citizens to understand what they are signing, the state could adopt policies and procedures that make it easier for citizens to become informed on these ballot proposals.

Michigan’s requirements to amend the constitution through initiative petition are only slightly harder than those to make petition-initiated statutory changes to state law. The minor difference in signature requirements between initiated constitutional amendments and initiated statutes leaves ballot question proponents little incentive to seek statutory change when a constitutional amendment will provide more permanence. This has led to issues of a statutory nature being adopted into Michigan’s Constitution.

Finally, while Michigan is one of 24 states that allow for this citizen-generated process, unlike other states, Michigan does not have a process for identifying potential shortcomings in the substance of proposed constitutional and statutory changes before petitions are circulated. This can enhance problems around voter confusion and the honesty of petition circulators. This is the primary reason for frequent court challenges of ballot proposals.

One last issue – indirect initiative as an end-run around the governor

Michigan is one of 18 states that allows for indirect statutory initiative. This allows ballot proponents to submit a proposed law to the legislature if they collect enough signatures to qualify for the ballot. If the legislature does not choose to approve the law, the ballot question is submitted to the voters. If they do approve it within 40 days, it becomes law without a vote of the people or approval of the governor (it is not subject to a gubernatorial veto). Of the 15 potential proposals in 2022, 10 are initiated statutes that could be approved by the legislature.

This process has been used as an end-run around the governor, such as with the Secure MI Vote initiative that was passed as a law, but vetoed by the governor. If it collects enough signatures, the legislature can adopt it without the governor’s approval. The Unlock MI II initiative, as well as the two education initiatives, are also likely to be approved by the legislature if enough signatures are gathered.

This process can also be used to adopt measures that the legislature wants to have more control over. In 2018, the Republican-led legislature approved minimum wage increase and paid sick leave proposals, only to weaken them shortly after approving them. By passing them through the legislature, lawmakers could make changes to the laws with a simple majority vote. If they had been approved at the ballot by the electorate, changing the laws would have required a three-fourths majority of the legislature.

Recommendations to improve grassroots governance in Michigan

In a 2014 report, the Research Council examined the laws and processes for placing ballot questions before voters in Michigan and provided some clear recommendations to improve the process and help restore confidence in government and the citizen-initiative.

Michigan should move to a front-loaded petition certification process with ballot petitions prepared by the Bureau of Elections or petition templates provided by the BSC. This would include requiring ballot question proponents to apply to circulate petitions for initiatives and referendums. Requiring an application to circulate petitions and a cursory review of the form, style, and substance of ballot questions would address many of the problems that have become usual in Michigan’s process. Additionally, the law should be changed to create a formal place in the process for Michigan’s Legislative Service Bureau to provide input on the drafting of the initiated statutes or constitutional amendments to ensure that the style conforms to drafting standards used when legislators propose statutory or constitutional changes. All matters except the sufficiency of signatures gathered would be addressed at the beginning of the process, leaving the BSC only to count signatures.

Reform of Michigan’s petition certification process would facilitate a move by the state into the business of preparing voter guides to provide some explanation of the ballot questions. Fiscal notes could be attached to the petitions. Legal opinions could be offered in the same time period, removing the last minute race to courts and tight timelines that necessitate hastily drafted court orders. Some states rely on their attorneys general or state supreme courts for input on the substance of ballot questions. Some states allow opponents to raise issues and give proponents time to reconsider these issues at the beginning of the process. Some include arguments of limited length from proponents and opponents on the petition. All of this information would help potential petition signers to be better informed.

Louisiana requires that a neutral third party analyze all ballot questions and the secretary of state facilitates distribution of those analyses to all electors. The Citizens Research Council already provides these unbiased fact-based analyses of all statewide ballot proposals in Michigan.

These changes would not make the petition process easier or harder to qualify ballot questions to appear before the voters, but would improve the dissemination of information to the benefit of those voters.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the Citizens Research Council of Michigan is properly cited.