A Loophole in Michigan Lets Laws Get Passed Without Checks and Balances

Passing a law in Michigan in 2021 looks less like Schoolhouse Rock and more like schoolyard drama thanks to a loophole in our Constitution.

DETROIT, Mich.—How are laws passed? 

Schoolhouse Rock taught the broad outlines for national laws—ideas become bills which get approved several times before being signed or vetoed. That’s usually the case for Michigan laws as well. But there’s a loophole that cuts the checks and balances out of the system, and it’s being used and abused more frequently. 

And that loophole might be used to get an end-run around Gov. Whitmer and force laws that will make voting in 2022 much harder for Michiganders, especially Michiganders of color, older Michiganders, and those living in rural Michigan. 

At the Detroit NAACP Freedom Fund Dinner Sunday, Oct. 3, Gov. Gretchen Whitmer signed a letter in front of the gathered crowd vetoing four bills designed to make voting less accessible in Michigan.

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Public signing of a veto is unusual, but standing in front of the NAACP, presented with a bill that would harm the voting rights of Michiganders of color, Gov. Whitmer took that unusual step and had as much ceremony for a stand against voter suppression as she might signing a bill she prized. 

“I’ve done a lot of signing ceremonies when I sign bills,” she said to a standing ovation from attendees at the event. “Tonight, I’m going to sign the veto letter in front of you.”

And following a severely restrictive voter ID law being passed by the Michigan Senate, it’s likely more vetoes blocking voter restrictions are on the way.

The dinner’s theme was “Don’t Rest on Your Freedom.” In the case of the bills vetoed, the freedoms in question—the freedom to cast a ballot and have it count—were strengthened in 2018 to great success in 2020. But the tool that got those freedoms to Michiganders contains a loophole that may be the means the right-wing uses to take them away.

How Citizen Initiatives Work, For Better and Worse

Thanks to a citizen initiative passed in 2018, voting had never been safer or easier in 2020. Records were smashed in election after election despite the pandemic, and Republicans in the state’s Senate found no evidence of fraud.

Now, efforts to restrict voting access in Michigan are aiming to abuse that same process thanks, in part, to something that happened Thursday, Sept. 23.

The Board of State Canvassers met to approve petition language and processes for a right-wing effort to curtail voting rights. Among other ideas in the proposal, limits on absentee voting would pose particular issues for rural communities and older voters.

But this petition is different from most that go before the Board of Canvassers. A normal partition is designed to put a question on the ballot in the next election, which is why it has to be approved by the state’s election overseers. That’s not how this petition, named “Secure MI Vote,” is designed to work at all.

A Ballot Proposal That’ll Never See a Ballot

Secure MI Vote is not intended to ever be put before Michiganders to be voted on by the people. As a proposal designed to make it harder to vote in the first place, this makes sense. Instead, Secure MI Vote exists to exploit a loophole in Michigan law that would allow the accepted petition to become law without the will of the people or the checks and balances of government ever getting involved in the process.

Thanks to a quirk of Michigan’s constitution, an unpopular package of highly restrictive voting laws being championed by the state’s right-wing legislators could pass, with only 340,000 Michiganders signing on to a decision for all 10 million people living in the state. 

That would be like letting Grand Rapids decide how the rest of the state should vote—or in this case, shouldn’t vote.

READ MORE: How a Handful of Michiganders Could Make Voting Harder for the Rest of Us

Michigan has a process in its constitution that allows the Legislature to approve an idea the people submit without it needing to go to a ballot. In its intended use, this would take either uncontroversial proposals the legislature likes or things with such overwhelming popular support as to be certain to pass at the ballot box and make them law. That saves time, hassle, and expense both for the state and the voters.

But there have been unintended uses of that process in recent history that have raised alarms about how easily exploited this procedural fast-track really is. For instance, in 2018 a citizen-led initiative aiming to ensure things like paid family leave and better wages in the state was adopted through this process by the Legislature. And, immediately after the election, the Legislature radically altered the proposal, gutting most of the things that made it popular among Michiganders. 

It’s been suspected for most of the summer that Republicans in the Legislature plan to do the opposite with Secure MI Vote. 

And because the process Secure MI Vote will likely follow, state Rep. Laurie Pohutsky (D-Livonia) worries the whole petition process may be misleading to voters.

“People are being told one thing is going to happen, and that’s actually never the case, that was never the plan,” Pohutsky told The ‘Gander. “I don’t think people are aware when signing on what is the actual plan for that.”

As evidence, Pohutsky pointed to the ballot petition for Unlock Michigan. That ballot proposal was similarly never intended to actually go to the ballot, and despite being labeled and explained as a ballot proposal, it’s intent was always to be enacted by the Legislature to avoid having to compromise across the aisle. That blueprint is the same as Secure MI Vote’s. 

Closing the Loophole

The package of policies that Secure MI Vote represents were opposed by half of Michiganders, handily beating the 41% that supported them in August’s issue of Lake Effect, a monthly publication by Public Policy Polling and Progress Michigan. But with about as many voters as Michiganders from Grand Rapids, the proposal can be approved for the ballot. Once that happens, right-wing legislators can make it law. 

With less than 1 in 20 Michiganders signing on and no support from the governor, unpopular laws can be enacted by the Legislature. 

SEE ALSO: Michigan Broke Voting Records in 2020. Now Republicans Want to Make Voting Harder.

That’s alarming to some of Michigan’s elected leaders, and Pohutsky is calling for change.

Pohutsky is calling on Michiganders to introduce a constitutional amendment ending the Legislature’s ability to adopt initiatives altogether, saying she “absolutely” thinks it’s time to close this loophole for good. 

But, she acknowledged, that solution is likely never coming from the Legislature itself, as it would be giving up one of their most powerful, albeit controversial, tools to circumvent the democratic process and enact what they want. 

“But an initiative to do this? To end the ability for the legislature to adopt an initiative once it has the required number of signatures?” she said. “I would support that absolutely.”