Here are a few pre-election issues that might be of interest to our readers:
The Michigan Election Law currently bans a voter from displaying or photographing the face of his or her marked ballot. Under MCL 168.738(2), if a voter shows the face of his or her marked ballot, the ballot is rejected and not counted, and the voter forfeits his or her right to vote in the election. In addition to this statute, Michigan's Secretary of State has issued instructions in accordance with MCL 168.31(1) stating that no one other than credentialed members of the media may photograph or film inside a polling place during an election, and severely restricting the use of cellular phones and cellular phone cameras in polling places. Willfully disobeying an election-related instruction of the Secretary of State constitutes a misdemeanor, MCL 168.931(1)(h), and is punishable by a fine of $500 or up to 90 days in jail, MCL 168.934.
On Monday, in a case called Crookston v. Johnson, United States District Judge Janet T. Neff issued a preliminary injunction enjoining the State of Michigan from enforcing those portions of the statute and Secretary of State's instructions that purport to ban a voter from photographing his or her own completed ballot. Judge Neff concluded that the statute and Secretary of State's instructions likely violate the First Amendment of the United States Constitution, and that the plaintiff had demonstrated a likelihood of success on the merits of his lawsuit.
Barring expedited consideration and reversal by the United States Court of Appeals for the Sixth Circuit, or a stay of Judge Neff's decision, Michigan voters will be able to take photographs of their completed ballots this November without facing prosecution or the aforementioned penalties.
Last March, State Representative Sam Singh (D-East Lansing) introduced HB 5430, which would amend the Michigan Election Law to expressly permit a voter to use a camera in a polling place to photograph his or her completed ballot. No action has been taken on HB 5430, which remains pending before the Michigan House of Representatives elections committee.
WRITE-IN VOTES FOR PRESIDENT?
Does Michigan law permit write-in candidates for President of the United States? The Secretary of State's office says it does. Indeed, according to a recent Detroit Free Press article, seven people have filed the requisite declaration of intent to run as a write-in candidate for President in Michigan this year.
But I'm not so sure.
True, Michigan law does not state that a person may not run as a write-in candidate for President. It merely provides, without differentiating among offices, that a person who wishes to run as a write-in candidate must file a declaration of intent with the appropriate elections official by "4 p.m. on the second Friday immediately before the election." MCL 168.737a(1).
So what's the problem? Well, as you probably know, we do not vote directly for President and Vice President of the United States. Instead, we vote for a slate of presidential electors. Michigan's write-in statute does not provide any mechanism by which a write-in candidate for President of the United States may designate a slate of electors or a vice presidential running mate.
Contrast this with MCL 168.590d(2), which permits a presidential candidate without party affiliation to qualify for the Michigan ballot by filing paperwork with the Secretary of State no later than 66 days before the general election. Section 590d(2) specifically provides that a candidate for President without party affiliation must identify "the names and addresses of persons chosen to be presidential electors and the name of the person who shall appear on the ballot as candidate for vice-president . . . ."
If the Legislature had truly intended to permit write-in candidates for President of the United States on the Michigan ballot, doesn't it seem that the lawmakers would have provided a similar mechanism for write-in candidates to identify a slate of electors and a running mate on their required declaration of intent forms?
A friend who is familiar with the practices of the Michigan Secretary of State's office has told me that write-in candidates for President are asked to name a slate of electors and a running mate when submitting their declaration of intent forms under § 737a. However, I reiterate that Michigan statute does not authorize this procedure or even mention it.
Under Article II, § 1, clause 2 of the United States Constitution, state legislatures have exclusive authority to determine the method by which a state's presidential electors are chosen. McPherson v. Blacker, 146 U.S. 1, 27, 35 (1892). I perceive absolutely no evidence that the Legislature intended to allow write-in votes for presidential electors in Michigan. The Secretary of State might believe that Michigan law allows write-in votes for electors of President of the United States, but I have my doubts.
GERRYMANDERED CONGRESSIONAL DISTRICTS
You might have read this recent newspaper article concluding that — despite the "Trump effect" — Michigan's Republican members of Congress have a good chance of being reelected this November. This can be traced, in no small part, to the way in which Michigan's congressional districts have been gerrymandered by the GOP-dominated state legislature.
Consider this: In the 2014 general election, 3,089,477 Michigan electors voted for the office of U.S. Representative in Congress. Of those, 1,466,749 (47.4%) voted for the Republican candidate, 1,519,030 (49.2%) voted for the Democratic candidate, and 103,698 (3.4%) voted for a third-party candidate. Yet of the 14 members of Congress elected from Michigan in 2014, nine (64%) are Republicans and only five (36%) are Democrats. In other words, even though more Michiganians voted for the Democratic candidate for Congress than the Republican candidate for Congress, Democrats make up only 36% of Michigan's congressional delegation.
Gerrymandering — the process by which one political party draws district boundaries to benefit its own candidates — can no longer be denied in Michigan. As the numbers clearly establish, the party that controls the redistricting process can effectively guarantee that it retains a majority of the seats in Michigan's congressional delegation going forward, even if it does not win a majority of the votes statewide. As Fix The Mitten has frequently observed, it's way past time for commonsense, bipartisan redistricting reform in Michigan.