Guy Gordon (00:01.611)
Hello and welcome to the Facts Matter podcast. I’m Guy Gordon, joined by Eric Lufer, president of the Citizens Research Council. Coming up November 3rd of this year, Michigan voters will be asked whether or not they want to hold a constitutional convention, also known as a CONCON. This is something where they could do a top to bottom review and perhaps revision of specific articles of our constitution, which we have had in its present form since 19…

Now we’ve been breaking down with overviews, some history of this, and you can find those earlier podcasts at CRCMish.org or at Spotify, YouTube, Apple Podcasts, wherever you find your hashtag, Facts Matter Podcast. Eric, today’s going to break down Article 2 for us, looks at elections. Eric, hello.

Eric Lupher (00:52.898)
Hello, it’s great to be back with everyone.

Guy Gordon (00:55.893)
historically this was not an article that would have gotten much attention in a can’t constitutional convention should we choose to have one but this might be different this time around

Eric Lupher (01:07.438)
Yeah, you know, having a provision, have an article in your constitution, your state constitution saying that the citizens have the right to vote and this is how it’ll work. In the case of Michigan and several other states allowing for initiative and referendum, you would say, well, that’s a good thing to have in there. But sort of once you get past the question of, should we have the initiative of referendum? It’s sort of a ho hum.

But in recent years, this has taken on a much higher profile. The question that we’re going to have on the ballot separate from this con con question, should we have stricter higher standards for people proving that they’re citizens to be able to qualify to vote? And over a couple cycles, we’ve put in a bunch of voting rights that have become

Guy Gordon (02:03.181)
Right?

Eric Lupher (02:05.42)
touch points for many people. So all of sudden this article has taken on a much higher profile as we think about all of the reasons we might or might not want to convene a constitutional question and open up this document for what could be wholesale changes.

Guy Gordon (02:22.573)
Well, in your fifth paper, you look at Article 2, it’s quite comprehensive, but it really starts with the idea that there are parts of our Constitution which are no longer in sync or consistent with the federal Constitution. And those things may need a cleanup.

Eric Lupher (02:38.432)
Yeah, you know, this is something that could be done anytime. It could be done by amendment to the Constitution. these didn’t pop up recently. They just don’t have a high profile. They don’t have a champion where anybody has said, well, let’s just do something simple and amend the state constitution to say you’re eligible to vote at 18 years instead of 21.

or that you’re able to vote on a property tax question, regardless of whether you own property in the city or not, or that we also have in our constitution term limits on our federal representatives in Congress. the federal courts long ago said the US constitution sets the parameters for who qualifies to be

Guy Gordon (03:20.204)
Right.

Eric Lupher (03:34.903)
in Congress, not state constitution. those are things that could be cleaned up really easy. We could have a constitutional convention to do it and be done within a day, or we could find a champion and say, well, let’s just clean up our constitution and make it consistent with real life. And the fact that we’ve been operating without having, you know, we just sort of ignore those things suggests that

Guy Gordon (03:54.339)
Alright.

Eric Lupher (04:04.27)
You know, so what?

Guy Gordon (04:06.755)
Yeah. Interesting though, I mean, I was surprised to find that, that, uh, that at least according to our constitution, you would have to be reached the age of 21 before voting. And that, has, that, that, you know, changed many years ago, but it still exists there, shows you when you don’t review it at, you know, since, uh, 63, you’re going to have those things in there. Uh, they,

Eric Lupher (04:29.038)
Yeah. So, the change was more recent than 63, but your point stands, this has been several decades that we’ve just gone along and got, you know, uh, we need people to open up that state constitution a little more often, especially some of our legislators who have the ability to put together a coalition among themselves and put the question on the ballot. Let’s just make our constitution consistent with reality.

Guy Gordon (04:35.746)
Yeah.

Guy Gordon (04:58.103)
The Article 2 also has a section that sets forward the framework of voting rights. Who is eligible? Who qualifies? This has been a hot button issue with the SAVE Act being debated right now federally. Would this be ripe for review in your mind if we have a constitutional convention?

Eric Lupher (05:20.994)
Well, I think it would certainly be a profile item that the delegates would banter back and forth on. This is not an issue that’s going away whether Congress deals with the SAVE Act or not. As I mentioned, we have a separate question. We don’t know for sure it’ll be on the ballot in November, but at the state level requiring higher level of

attestation that you are a U.S. citizen, whether that’s a birth certificate or what have you. So that will be a high profile item. But we also have a number of the other voting rights. Back in 2018 and then again in 2022, a number of

rights were introduced into the state constitution, the amendments were called promote the vote and promote the vote to that really laid out the idea that your ballot is a secret ballot and put in a bunch of provisions to allow for no reason absentee voting, the ability to vote on a straight party ticket. So a lot of those things came in here, we had

you know, as you would guess, section four from the get-go, when the section four was adopted as part of the 1963 constitution, was 111 words. And now with all of these things added in those two election cycles, it’s over 1300 words. So we really blew up the idea that you have rights to vote in certain ways.

that you have drop boxes available to you for your no reason absentee ballot, the security of your ballot, things like that.

Guy Gordon (07:16.792)
Right?

Same day registration, also a provision of that.

Eric Lupher (07:22.4)
Right. Yeah, so, you know, again, some people find that really helpful. No reason absentee balloting, the ability to vote from your living room or your kitchen table has really caught on in recent years, partly, I would guess, because of COVID. So a lot of people enjoy the rights provided in Section 4.

But there are some people who, you know, for whatever reason think that’s a problem and worry about the security of voting and will want to open up those types of sections, I would guess, if we were to have a constitutional convention.

Guy Gordon (08:05.357)
Well, I think there has already been legislation kicked around that is a state version of the SAVE Act, which would try to statutorily insert these things. The other thing is we’ve noticed kind of an evolution that’s taken place at the Board of Canvassers, which is supposed to be nonpartisan or at least balanced in terms of its partisan makeup. That has changed in recent years. So that’s something that could be addressed in the future.

Eric Lupher (08:35.392)
Yeah, states have different ways of

certifying that candidates are eligible to run for office, to look at the results of the elections and say, you know, we can count all the votes and we’ll certify these are the winners. And also as it relates to the initiative and referendum in Michigan. The 1963 constitution, the delegates,

I think in some ways in a very Pollyannaish way, try to say if we create equity in a sort of cynically say apolitical way that there’s only Republican and Democratic parties in the world, say if we create equity among them with 110 House districts and 38 Senate districts and

whole bunch of commissions that have to be equally situated with two Republican and two Democrat, that they’ll be forced to compromise and there’ll be, you know, unicorns and rainbows. Life doesn’t work that way. And the board of state canvassers has been one of the ways that we see that sometimes party has risen above compromise and

the members of those have tried to adhere to party fealty. Even though, you know, the sort of the structure of Board of Canvassers is you count. Did one, did one, or one candidate get more votes than the other? Are there enough signatures on the petition to qualify for the ballot? And they, their ministerial role doesn’t get into

Guy Gordon (10:19.031)
Right.

Eric Lupher (10:35.052)
adjudicating the right words on it, things like that, challenges things, right? Yeah. So, know, we might, a board of state, a con con might say, well, this just isn’t working. Let’s do it different. And there’s other states we could look at for doing it different. They might say, well, let’s tighten it up. Let’s make it what is already abundantly clear. Let’s make it even more abundantly clear that the

Guy Gordon (10:38.315)
or challenges. Yeah.

Eric Lupher (11:04.342)
role of the Board of State Canvassers is a ministerial role, attesting that this candidate won or the petitions are valid or what have you. So there’s a couple ways we, CONCON could go as it relates to the Board of State Canvassers.

Guy Gordon (11:23.789)
could could be added different commission one that would address this idea of of reviewing elections after the fact

Eric Lupher (11:33.953)
Yeah, they could certainly do that. We see in other states that as it relates to initiative and referendum, the states get their, you know, what we have our House and Senate fiscal agencies involved in, you know, would this break the bank or not? Let’s provide a fiscal analysis so people understand what they’re voting on. They get the

Guy Gordon (11:50.273)
Right.

Eric Lupher (12:02.378)
legislative service bureau in Michigan, or they have different names in other states, to make sure the wording is consistent with how we do things in Michigan and sort of passes legal muster in that way, adhering to the will of whoever is advocating for it, but make it consistent that way. They get their attorney generals involved in doing some sort of legal analysis of it. All those things can be political.

we’re taking something that’s already political and making it more so, but that helps the voters to understand people who are involved in government, who understand how things work, have looked at this and said, we see an issue there. And then the groups could go back and rework it or try to address those types of things. So there’s a way to head it off so you don’t have to fall on this.

Guy Gordon (12:34.381)
Right.

Eric Lupher (12:59.522)
ministerial body, the Board of State canvassers to do things that are just beyond their charge, beyond their abilities.

Guy Gordon (13:08.021)
Section 8 also covers in Article 2 how we recall elected officials. And that’s also evolved over time. It has been pretty rare in some instances, but ripe for review.

Eric Lupher (13:26.72)
It will be ripe for review. Michigan cleaned this up a few years ago legislatively to

So we don’t have as much willy nilly recall efforts, efforts to, you know, just let’s let people do their job and get their foot in the door before you’re already circulating petitions for recall. Or if we’re going to have an election in November, let’s not do a recall vote in May.

So we did clean it up in some ways, but the intent of the section was to give people a voice, a sort of a grassroots that we don’t think this elected official is representing the will of the voters or there seems to be some sort of malfeasance or poor actions that don’t represent the community well.

Guy Gordon (14:25.292)
Right, and it…

Eric Lupher (14:29.384)
And the courts have been very reluctant to allow many of those things to go forward. It was meant to be a political decision, whether recall is necessary. And the courts have put very tight boundaries on that, that I think a con con, if it were convened, would want to look at closely and say, is this really how we want to do it?

Guy Gordon (14:50.744)
Yeah.

Guy Gordon (14:54.563)
Because the original intent was malfeasance, incompetence, neglect of office. It wasn’t something that you would use in a punitive sense against somebody because you didn’t like how they voted on a particular issue.

Eric Lupher (15:10.126)
Right. the efforts, the recall efforts have sort of covered the gamut. They tried to, I think the delegates in 1963 tried to keep it out of the courts that this is a political question. You know, if somebody is locked up, then we have a different constitutional provision that says a convict can’t be a public official.

Yeah, I mean there’s lots of room to look at this and say how can we do it better. And I think this will be a question that’s right for close analysis.

Guy Gordon (15:46.893)
We have seen Michigan voters passionately use other forms of direct democracy, the ballot initiative, ballot referendums. We’ve seen some that failed to make it in this cycle, but we have seen a lot of that, especially in instances where maybe the legislature or the governor, it was an issue that was kind of the third rail. They didn’t want to touch it. Will that be something that would

get a lot of attention in a constitutional convention and how.

Eric Lupher (16:19.586)
I think so. So Michigan has what’s called an indirect initiative. We the people have the right to suggest here’s a law. Our legislature isn’t moving on it. We think there’s enough people who support that that if we were to circulate petitions, we could get it on the ballot. And if the legislature just chose not to do anything with it, then we could vote on it.

We ended up with casino gaming in Michigan and in Detroit because of the initiative and use of marijuana, other things. So it has come into play many times, but less so in Michigan than some other states that have the initiative. Part of the issue in Michigan that a constitutional convention will want to address is that indirect form.

Guy Gordon (16:52.268)
Right?

Eric Lupher (17:19.982)
The indirectness is that once those petitions are certified, the question goes to the legislature and they have a window of time where they can choose to adopt it. It’s not subject to gubernatorial veto. And what we see then is that sometimes the political parties have gained the system, try to pass a law.

through the regular legislative process. doesn’t pass the, you know, the governor vetoes it. doesn’t pass that part of the process. And then they go back and let’s get the petition signatures, which is a fairly low threshold, not inconsequential, but fairly low. Get it introduced that way and then the legislature can adopt it and the governor now can’t veto it. So

Do we want it to work that way? We also have in the Constitution the provision for referendum. If the legislature enacts a law that a number of people say, well, that’s not what we wanted. That’s what you don’t think you’re representing the interest of our state. They can again circulate petition signatures and recall or do the referendum.

saying should this in fact go into effect as a law in Michigan. When they put that into the Constitution, they said, well, you can’t do that for appropriations. You could imagine what happens if you do that, our appropriation for the Department of Treasury or corrections or something subject to a referendum and you just can’t function in government that way. So they tried to make it clear this is just for

everything else, but not for how we fund state government. That provision has been bastardized in some ways that the legislature when they’re dealing with a controversial topic will just put in a token appropriation and then it’s not subject to referendum. so these are the types of things that the legislature or that a constitutional convention I think will want to say.

Eric Lupher (19:44.503)
First of all, do we want to keep the initiative in referendum? We’ve had it for a long time in Michigan. It’s been used in many ways. Do we want to keep it or not? And if so, how can we clean it up to deal with some of these side issues, these sort of annoyance issues that make the system not always work as pure, as clean as was intended when they wrote the Constitution in the 60s?

Guy Gordon (20:14.197)
Any other elements that you think that might be curious or that voters should know about that could either open a can of worms or maybe open something that needs to be addressed?

Eric Lupher (20:28.902)
No, I mean, I, again, I go back to where we started that, if you would have, if we would have had this question, you know, 10 years ago, eight years ago, you can look back, we’ve done these analyses for the con con every 16 years. You can go back 16 years ago and our, our paper on article two was fairly short because it was just not, there was just wasn’t that meat, the much meat there and

This time around, it has become a much more high profile issue and a lot of people will have strong feelings about whether we need a constitutional convention to address many of the provisions in this article.

Guy Gordon (21:10.819)
Well that wraps it up for Article 2. We will tackle Article 3 in another podcast down the road. That’s we’ll look at just the general government and it’s kind of a catch-all article in our Constitution, very rarely amended. But there are some things that may get some attention, especially when it comes to something like transparency. We’ll explore that in the next edition of our Facts Matter podcast. Eric, thank you very much.

all in before we go eric we should take note of the fact that we’ve got a centennial plus ten that were celebrating at the c r c

Eric Lupher (22:38.828)
Yeah, the doors opened in 1916, April 13th of 1916. And so this is, we’re coming up real quickly on our 110th anniversary and a lot of good work over that 110 years and in a year where we’re dealing with constitutional convention questions and other ballot issues and things like

data centers and property tax reform and everything else, you can really see the value of having an independent nonpartisan group like the Citizens Research Council working for the citizens to give them the information to be informed voters, informed participants in our democracy.

Guy Gordon (23:27.521)
Indeed. And so we invite you to go to crcmich.org. Perhaps donate to support the work of the Citizens Research Council, this kind of unbiased research that is fact-based and again, that dedicated to the notion that facts do matter and that they should drive policy, not politics. Eric, thanks very much. We’ll see you next time.

Eric Lupher (23:50.201)
Thank you.