Nick Krieger (@nckrieger):
The upcoming Detroit school board election is most likely invalid because the Michigan Legislature did not comply with the state constitution when it enacted the authorizing statute last summer.
As you probably know, there are more than 60 candidates running for seven seats on the new Detroit school board. But next Tuesday's election is technically invalid and the product of fraud. As a result, the seven candidates “elected” on Tuesday will hold their positions illegitimately.
In June, the Michigan Legislature passed a multi-bill package dividing the Detroit Public Schools into two entities: (1) an old district (the “qualifying district”) that exists solely to pay off debt, and (2) a new district (the “community district”) that exists to educate children, operate schools, and hold title to property.
The main bill in the package — House Bill 5384 (now designated as Public Act 192 of 2016) — calls for the election of a new seven-member Detroit school board on November 8, 2016. According to the legislation, this new board will oversee both the community district and the qualifying district. Public Act 192 further states that the existing Detroit Public Schools Board of Education will be dissolved once the new school board members take office on January 1, 2017.
But there's a fundamental problem with Public Act 192. The act, which purports to authorize Tuesday's Detroit school board election, cannot constitutionally take effect until March 2017.
Under the Michigan Constitution, a public act generally takes effect 90 days after the final adjournment of the legislative session at which it was passed. However, the Legislature “may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.”
Public Act 192 did not receive the support of two-thirds of the members elected to and serving in the Michigan House of Representatives or the Michigan Senate. As a result, it cannot constitutionally take immediate effect. In accordance with Article 4, § 27 of the Michigan Constitution, Public Act 192 will not legally become effective until 90 days after the final adjournment of the 2016 legislative session — sometime in March 2017.
The leadership and clerk of the Michigan House of Representatives recorded in the Journal of the House of Representatives that two-thirds of the representatives had voted to give House Bill 5384 immediate effect. Similarly, the leadership and secretary of the Michigan Senate recorded in the Journal of the Senate that two-thirds of the senators had voted to give House Bill 5384 immediate effect. But neither of these statements was actually true. In reality, the bill did not receive the required two-thirds supermajority support in either chamber.
When the leadership of either chamber falsely records that two-thirds of the members elected and serving have voted to give a bill immediate effect, it commits a fraud on the people of the state of Michigan. This is precisely what happened with House Bill 5384. Neither chamber legally gave immediate effect to the bill, yet each chamber falsely reported that it did.
Since Public Act 192 was not properly given immediate effect in either chamber, none of its provisions can take effect until the expiration of 90 days from the end of the 2016 legislative session. This includes the provisions of the act that dissolve the existing Detroit Public Schools Board of Education, establish the new seven-member Detroit school board, and provide for its election on Tuesday. Quite simply, there is no way that Public Act 192 can legally authorize a school board election in November 2016 — which is obviously before the end of the 2016 legislative session.
Irrespective of what the Michigan Legislature or Governor has to say, Public Act 192 cannot legally take effect until sometime in March. Thus, the seven candidates “elected” on Tuesday will hold their positions illegitimately. Fix The Mitten declines to make endorsements for Tuesday's unlawful school board election. We do recommend, however, that voters select from among the members of the existing Detroit Public Schools Board of Education — after all, these individuals have been democratically elected and hold office legitimately.
Of course, no one is talking about this glaring constitutional infirmity, and Tuesday's Detroit school board election will proceed as if nothing is amiss. Furthermore, unless someone challenges the process in court, the seven individuals who receive the highest vote totals on Tuesday will take office in January. It's worth bearing in mind, however, that each house of the Michigan Legislature falsified its own records and committed a fraud on the public to bring about this hastily organized, constitutionally invalid election. You should ask yourself why.