A version of this post appeared in Bridge Magazine

In a nutshell:

• Unlike other states with the citizen-initiative, Michigan does not have a process for identifying potential shortcomings in the substance of proposed constitutional and statutory law changes before petitions are circulated.
• Processes used in other states involve attorneys general, the courts, opponents of the proposals, and civic public affairs organizations prior to signature gathering.
• Reforms aimed at front-loading Michigan’s initiative process would ensure the citizenry maintains its grassroots lawmaking power, permit more information about the proposal during petition circulation, and eliminate lawsuits that breed distrust in government..

Any time Michigan stands alone in some state practice, we should ask if it is being innovative or stuck in the mud.

Michigan is in the middle of initiative and referendum season, when issue proponents are circulating petitions to amend the state Constitution or adopt/revise state law. Michigan’s  process for reviewing the form, style, and substance of initiative petitions stands in contrast to those used in every other initiative and referendum state (24 states allow this citizen-generated process).

Michigan has a process for reviewing the form of the petitions before they are circulated, but it has none for reviewing the substance of the proposed changes. Ballot issue proponents have the option of submitting draft petitions to the Board of State Canvassers (BSC) before circulating those petitions to gather signatures, but state election law does not require the pre-approval of the petition form.

The responsibilities of the BSC are purely ministerial.  Whether the petitions are submitted to the BSC prior to circulation or they receive the petitions after circulation, the BSC may only weigh in on the form of the petitions – format, 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 adopted.

In fact, there is no process or authority for anyone inside state government, or any other interested party, to assess the substance of proposals, including their constitutional or statutory legality. As a result, reviews of their substance are done after petitions are circulated and submitted to the BSC, often through lawsuits, thus injecting the judiciary into what are inherently political questions. Success in the lawsuits stands to undo the work of the proponents and negate the will of hundreds of thousands of electors who signed these petitions.

We’ve already seen this in the current initiative cycle.

The proposed part-time legislature petition was submitted to the BSC three times. The first two, the proposed constitutional amendment was withdrawn from consideration before the BSC could weigh in because of issues raised by the state elections officials, outside interests, and a member of the BSC. Ultimately, the proponents of the proposal – Clean Michigan – opted to forego getting  BSC pre-approval as to form prior to petition circulation. And then, several weeks after gathering signatures, Clean Michigan further refined the amendment language, restarting signature collection.

More recently, BSC certification of the Voters Not Politicians redistricting initiative was stalled by a lawsuit challenging the substance of the proposed constitutional amendment. By this point, the form of the petitions had been signed off on by the BSC, volunteers had circulated them, those petitions had been submitted, and the state Elections Bureau had determined that the group had more than enough signatures to qualify for the ballot.

In 2014, the Citizens Research Council of Michigan studied Michigan’s ballot proposal process and considered potential reforms. Our analysis showed that, the language-review process stood out as the issue most ripe for reform. Of all of the states with initiative and referendum, Michigan stands alone in the lack of meaningful review of proposal language and substance prior to petition circulation.

Other states use front-loaded processes to weed out “frivolous” initiatives; provide the proponents and opponents greater confidence that the ballot questions will pass legal muster; allow for the creation of ballot question summaries, fiscal notes, as well as arguments for and against the ballot question; and concentrate the focus of those certifying the submitted signatures solely on the legitimacy and sufficiency of those signatures.

Much of the controversy and legal wrangling that seems to constantly surround the certification of ballot questions could be alleviated by requiring the approval process prior to circulating petitions and mandating a meaningful review of issues’ substance as part of that process.

Many states provide opportunities for review and assistance in the pre-circulation process, but proponents are not required to heed the feedback provided. Some states require this process for the purpose of screening for language, content and/or constitutionality. The results of the review in some states may be advisory, as in Mississippi, or the public officer may reject a ballot question, such as in Arkansas where the attorney general can reject a ballot question for misleading terminology.

A number of states provide examples of how state officials could opine on the form, style, and substance of initiative ballot questions. Many rely heavily on their attorneys general for input on the substance of the ballot questions. However, it seems that this could further politicize the process in Michigan after recent attorneys general have taken positions on many ballot questions.

In light of this, a couple of alternatives are worth considering. Florida pauses the signature gathering process after a fair number of signatures have been gathered, but before the groups reach the finish line, to seek advisory opinions from the state Supreme Court. Issues and objections must be raised at this point. If problems are identified, proponents can address those issues and restart the process.

Another viable approach would allow interested parties a window of time before the petition circulation process begins to raise issues with proposed ballot questions so that proponents can consider redrafting the measure to address any defects. Many states include arguments of limited length from proponents and opponents with the materials attached to the circulated petitions.

A third alternative would emulate the informal process used in Louisiana to have a neutral third party analyze the ballot questions. The non-partisan Public Affairs Research Council of Louisiana, a non-profit organization very similar to the Citizens Research Council of Michigan, analyzes all ballot questions, and the Louisiana Secretary of State facilitates distribution of those analyses to voters.

The law also could be changed to create a formal place in the process for Michigan’s Legislative Service Bureau to provide input on 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.

When applicable, input from the state budget office and/or the legislative fiscal agencies would facilitate preparation of fiscal notes, so potential petition signers and voters can better understand how the ballot questions might affect the finances of the state and local governments.

By taking these steps, Michigan could have the 100-word description of the ballot question prepared before petitions are circulated. Like other states, Michigan could require the description to appear on the petitions themselves. Reform of Michigan’s process should include requiring the state to prepare voter guides to explain the issues. When applicable, fiscal notes could be attached as well. All of this information would help potential petition signers be better informed.

For all there is to dislike about the legislative process, it is clearly a benefit that ideas that will affect ten million state residents are published for all to inspect; are debated in the legislative chambers, on editorial pages, and in social media; are drafted by the Legislative Service Bureau to create uniformity of form; and are subject to review by the fiscal agencies and attorney general.

Initiated constitutional amendments and statutes are drafted by proponents of a reform that generally share a world view. Proposed amendments to constitutional or statutory law seldom are offered for review outside of those closed circles. As a result, reforms have been offered over the years with poor grammatical construction, using phraseology outside statutory norms, potentially in conflict with state or federal constitutional law, or neglectful of potential secondary consequences.

Michigan’s back-loaded process does not serve the citizenry well. Citizens who signed petitions may feel their voices are being muted. Financial supporters may feel their investments are being wasted. And confidence in government is eroded when courts decide the fate of contested petitions for what may be perceived of as political reasons. The initiative process was designed to allow grassroots reforms offered outside the political wranglings of the legislative process. All efforts should be made to strengthen that process.