Nick Krieger (@nckrieger):
Much has been written in recent days concerning Senate Bill 776, which would amend the Michigan Election Law to provide that no signature on a petition proposing a constitutional amendment or initiated statute would be valid if collected more than 180 days before filing.
Without question, Senate Bill 776 is an unnecessary piece of legislation. Section 472a of the Michigan Election Law, MCL 168.472a, already provides that signatures are presumed to be stale and void after 180 days unless the presumption is successfully rebutted.
But there are much bigger problems with Senate Bill 776.
First, As Brian Dickerson has accurately pointed out in the Detroit Free Press, the bill is a Republican attempt to restrict the voters’ ability to amend the constitution and initiate state laws. The people’s prerogatives to directly amend the constitution and enact state laws are important rights guaranteed by the Michigan Constitution. We should be inherently skeptical of any proposed legislation that would limit these rights.
More importantly, Senate Bill 776 is most likely unconstitutional—at least with respect to initiative petitions.
As currently written, MCL 168.472a applies to both (1) petitions proposing constitutional amendments, and (2) petitions seeking to initiate laws. However, constitutional-amendment petitions and initiative petitions are very different things. Indeed, they are defined and described in two completely separate articles of the state constitution.
The section of the Michigan Constitution that defines and describes constitutional-amendment petitions is Article 12, section 2. This section specifies that “[a]ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.” In other words, the Legislature is specifically authorized to regulate the manner of signing and circulating constitutional-amendment petitions. This authorization naturally extends to regulating the timeliness of signatures, including the statutory 180-day presumption for signatures on constitutional-amendment petitions.
By contrast, initiative petitions are defined and described in Article 2, section 9. This section—unlike Article 12, section 2—contains no language authorizing the Legislature to regulate the manner of signing and circulating petitions. In general, when specific authorizing language is included in one section of a document but omitted from another section of the same document, the omission must be construed as intentional. Hence, it does not appear that the Legislature is constitutionally permitted to enact laws concerning the timeliness of signatures on initiative petitions.
In the 1986 case of Consumers Power v. Attorney General, the Michigan Supreme Court ruled that the language of Article 12, section 2 authorized the Legislature to enact the 180-day presumption of staleness in MCL 168.472a. The problem, however, is that the decision in Consumers Power was limited to the constitutional-amendment language of Article 12, section 2. It did not even mention initiative petitions under Article 2, section 9. Accordingly, the decision in Consumers Power, upholding the constitutionality of the 180-day presumption, applies in the context of constitutional-amendment petitions only. Because the Court’s decision was based entirely on the language of Article 12, section 2, it necessarily cannot be considered applicable to initiative petitions governed by Article 2, section 9.
Former Attorney General Frank Kelley opined in 1974 that the Legislature was not permitted to enact the 180-day presumption of staleness for either constitutional-amendment petitions or initiative petitions. With respect to initiative petitions, Kelley determined that the only time restriction applicable to signatures was that suggested by the constitution itself—namely, that all signatures must have been collected since the last preceding gubernatorial election in order to be valid. It is generally accepted that the Supreme Court’s decision in Consumers Power overruled Kelley’s opinion as it related to the timeliness of signatures on constitutional-amendment petitions. However, because the Supreme Court’s decision relied exclusively on the language of Article 12, section 2, it could not have affected Kelley’s opinion with respect to the timeliness of initiative-petition signatures under Article 2, section 9.
I conclude that the 180-day staleness presumption in the current MCL 168.472a cannot be constitutionally applied to signatures on initiative petitions. Senate Bill 776, which would make the 180-day time limit even stricter, is equally unconstitutional as applied to the signing of initiative petitions.
Senate Bill 776 should be defeated. It is not only bad legislation. It is also unconstitutional insofar as it would apply to initiative petitions.