Updated: Sep 16, 2022
Michigan’s Board of Canvassers, "gibberish," and what makes a word: what just happened with the state’s Reproductive Freedom Initiative and why it matters for future elections
Michigan’s Supreme Court ruled last week that the state’s voters will find the Right to Reproductive Freedom initiative on their midterm ballots. The initiative was stalled by a challenge before the State Board of Canvassers but revived by state supreme court intervention. The unusual path for the proposal highlights increasing partisan friction in Michigan’s electoral procedures that has deepened concerns about impartial administration in future contests.
After a successful signature drive, it initially looked as though the Reproductive Freedom initiative would be presented to voters without a challenge. Michigan Reproductive Freedom for All (RFFA), the committee driving the campaign, gathered upwards of 750,000 signatures. Even after the Board of State Canvassers eliminated some signature sheets due to errors, over 735,000 signatures remained, more than enough to meet the 425,059 signature threshold. However, a coalition of anti-choice groups, Citizens to Support MI Women and Children (CSMWC), submitted a challenge to the Board, arguing that the form of the petition was flawed because “minimal spacing throughout the text of the constitutional amendment language within the substance of the petition resulted in series of words being condensed into long, nonsensical letter combinations.” They asked the Board of State Canvassers to step in, claiming that petition signatories did not understand what they were signing due to the cramped formatting of the text.
Michigan’s Board of State Canvassers is a statewide, bipartisan body. It is responsible for “[c]anvassing and certifying statewide elections, elections for legislative districts that cross county lines and all judicial offices except Judge of the Probate Court,” “[c]anvassing nominating petitions filed with the Secretary of State,” and “[a]ssigning ballot designations and adopting ballot language for statewide ballot proposals,” among other election-related activities. The Board of State Canvassers has already been significantly involved in 2022’s midterm elections, disqualifying five Republican gubernatorial primary candidates for presenting false signatures on their nominating petitions. Here, the Board’s party-line vote, 2-2, failed to certify the initiative to the ballot and essentially guaranteed a court challenge.
The original version, conditionally approved 3/7
The petition format version, revised to remove one duplicated word (“the”) on 3/30
The Board’s hearing on CSMWC’s objection elicited heated testimony from members of the public, most of which was focused on support for or opposition to the substance of the initiative rather than the petition’s format. The Board had pre-approved an earlier version of the text on March 7th, asking circulators to remove a stray "the." Circulators did so and the final version of the text was revised by March 30. The pre-hearing staff report on the complaint stated that the statute governing initiatives and petitions “is silent on the amount of space that must be between letters and words in a petition” and “does not provide requirements as to spacing or ‘kerning’—the term for adjusting the space between characters in proportional font.” While staff made “no recommendation as to the merits of these legal arguments as they pertain to the substance of the petition,” they noted that “[c]ourts in Michigan have found that the board’s duty is limited to determining whether the form of the petition complies with the statutory requirements and whether there are sufficient signatures to warrant certification of the proposal.” As text spacing requirements are found nowhere in the statute, there is no statutory compliance issue for the Board to review with respect to spacing in the petition. They concluded by reminding the Board that Michigan courts have concluded that “[t]he duties of the Board of State Canvassers are ‘purely ministerial and clerical.’” The final staff recommendation was that the Board vote to certify the petition. The Board still deadlocked at its August 31 hearing, refusing to certify the ballot question.
RFFA sought relief from the Michigan Supreme Court, looking to have the court force the Board to certify the ballot question. RFFA’s complaint for mandamus relief argued that “[t]he authority of the Board extends only to the approval of the petition form and canvassing the number of valid signatures provided by a proposal.” (emphasis in original) Here, “[t]he number and validity of the signatures submitted are not disputed. The Board has previously approved the form of the petition.” RFFA emphasized that the BSC cannot reject an initiative because of issues with the substantive text and argued that CSMWC’s concerns about adding “nonexistent words” and “gibberish” to the state constitution are objections to the substantive text, not to its formatting. In their complaint, RFFA stated that the two Republican board members who voted against certifications “simply declare[d] the small spaces as ‘typos’ and concoct a new requirement, not enacted by the Legislature, that a petition cannot have typos. This is not the law.” Finally, if readers didn’t understand the complete text included in the petition, RFFA said, they “had an immediate remedy—they could simply not sign the petition.”
The Michigan Supreme Court expedited its decision in this case, working to resolve the issue before ballots were to be printed on September 9th so that absentee ballots could be mailed to military and overseas voters. On September 8th, the Court compelled the Board to certify the initiative. In its order, the Court highlighted the duties and authority the Board does have, noting the limits to the Board’s power. The Board can reject a petition for failing to meet statutory requirements with respect to font size of the summary or full text, for omitting a description of the petition in an appropriate font size, or for including a summary that exceeds 100 words. In the words of Chief Justice Mary McCormack each of these requirements “promotes transparency and comprehension. None is designed to be an obstacle without a purpose.” She noted that “[t]he challengers have not produced a single signer who claims to have been confused by the limited-spacing sections in the full text of the proposal.” Ultimately, she concluded, “there is no dispute that every word appears and appears legibly and in the correct order, and there is no evidence that anyone was confused about the text.” Justice Bernstein in concurrence noted that the format in which a text is printed has little to do with its ultimate meaning, addressing concerns from dissenting Justice Zahra about precision and spacing: “As a blind person who is also a wordsmith and a member of this Court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me.” In sum, the majority members rejected the argument that the formatting and presentation of the ballot text substantively transformed its words into new and meaningless words. The text as printed, though not ideally formatted, remained the original “full text” required by law.
Dissenting, Justice Zahra wanted full briefing and argument in the case before rendering a decision. Despite Justice Zahra’s concern that the issues weren’t fully treated, the court did have the benefit of amicus briefs from the Michigan Attorney General Dana Nessel, University of Michigan law professors, county prosecutors, and interest groups on both sides of the argument.
Justice Viviano’s dissent took a textualist approach that homed in on the words “full text,” isolated from the rest of the statute. He used different dictionaries than CSMWC, focusing on definitions contemporaneous to the 1908 ratification of the state constitution and the 1963 re-ratification of the relevant language. Though the dictionaries are different, the conclusion is the same. He very briefly discussed the word “full,” which was neglected in the CSMWC complaint; he pulled a definition that defines full as “not wanting in any part or essential quality.” He concluded that “[t]he ordinary meaning of ‘full text,’ then, is the entire or complete body or structure of the original words of an author. In this context, the original words are those of the amendment itself.” After looking to cases from other states with similar petition processes, Justice Viviano agreed with CSMWC’s contention that the compressed formatting of the amendment attached to the petition created something that isn’t the “full text,” giving Board members reason to vote against certification.
The majority spent little energy on refuting these arguments, and the dissent’s reasoning is unpersuasive. Though precedent from other states indicates that their high courts might reject the poorly formatted petition at issue here, the underlying statutory or constitutional language in those states is different enough from Michigan’s that the analogies aren’t all that probative. Justice Viviano refers to “the common definitions of ‘full text’ and the relevant caselaw exploring this language” despite the fact that there isn’t common underlying language in several of the cases he cites, which include additional modifiers not found in Michigan law. For example, Missouri law requires a “full and correct copy” of the proposed text be attached to a petition; the modifier “correct” appears nowhere in Michigan’s requirement, though it also appears in Arkansas, another state whose law is cited by Justice Viviano. Oklahoma and Massachusetts, also cited in the dissent, have an “exact copy” requirement; Michigan law again does not include the word “exact.” The dissent doesn’t persuasively explain why these states’ differing statutes are probative for interpreters of Michigan’s own law. These are different phrases with different meanings; presumably the legislatures of these states would have used identical language if their statutes were to have identical interpretations. The cases from three states that do simply use the phrase “full text” are dealing with entirely different facts: in all three, the court is addressing omissions of key pieces of text, not the presentation of a complete amendment. One, from 1919, appears to handle discrepancies between the text presented on a petition and the final version presented on the ballot and subsequently put to a vote.
Even the Michigan law cited by Justice Viviano focuses on a meaningful omission rather than a technical or formatting error. Another decision cited by Justice Viviano dealt with a petition that both “fail[ed] the republication requirement,” which was disqualifying in itself, and contained an error that would have created a duplicative section of the state constitution. Additionally, this ruling came from the Court of Appeals, not the state supreme court, and was never published. Further, the textual analysis takes the phrase “full text” entirely on its own, without considering the context of the full sentence, let alone the full statute, that contains it. Rather than addressing a likely understanding, by legislators and laypeople alike, that requiring the “full text” is meant to prohibit significant omissions of material, the dissent cobbles together a definition of the phrase that doesn’t meaningfully resonate with its public meaning, legislative intent, or statutory purpose.
While CSMWC put significant energy into its additional arguments that “gibberish” shouldn’t be incorporated into the constitution, those arguments hold little legal weight. Even if the full text of the proposed amendment was not presented clearly, the less-than-ideal formatting didn’t violate the law or permit the Board to block the proposal from the ballot. It seems that the Board neither has a statutory duty nor the statutory authority to reject a ballot initiative because presented amendment language wasn’t sufficiently clear. Michigan law allows challenges to the optional “summary of the purpose of the proposed amendment or question” on a petition, which “must consist of a true and impartial statement of the purpose of the proposed amendment or question,” “must be clearly written using words that have a common everyday meaning to the general public,” and “must be worded so as to apprise the petition signers of the subject matter of the proposed amendment or question proposed, but does not need to be legally precise.” However, the only mention of challenges for being “misleading or deceptive” comes when describing how such challenges are limited: “The board of state canvassers may not consider a challenge to the sufficiency of a submitted petition on the basis of the summary being misleading or deceptive if that summary was approved before circulation of the petition.” The challenge here was not to the presented summary but to the attached text of the amendment itself; no equivalent avenue for challenge to the amendment text is immediately apparent in the statute. The law might assume (probably rightly) that most petition signers are much more likely to read the petition summary than the proposed legal language and therefore prioritize clarity and honesty there. It might be a simple oversight by the legislature that there is no way to challenge potentially misleading full text attached to petitions. Whatever the reason for the structure of the law, one thing is unavoidable: there isn’t a requirement that the full text of an amendment not be misleading, deceptive, confusing, or oddly formatted.
Chief Justice McCormack concluded that Board members voted against certification “not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. What a sad marker of the times.” The partisan conflict here does not bode well for Michigan’s upcoming midterm elections. Each individual county has its own Board of Canvassers, one of which made headlines in 2020 when Wayne County’s Board of Canvassers briefly refused to certify election results, despite the fact that “Biden crushed Trump” there. This action contributed to the uncertainty that the state board would certify 2020 results; the state board’s Republican members cited purported irregularities in Wayne County (which, again, was not remotely close) as a factor in their decision. One voted for certification and the other voted against. Though 2022’s primaries ran smoothly, the stage has been set for both state and county boards to refuse to certify future results, something that is not and should not be normal. In 2020, some Michigan Republicans appeared to agree and did push back against this type of gamesmanship and misuse of administrative authority. Despite the possible benefits to his party, staunch Republican and state House Speaker Lee Chatfield recognized the broader risks of a failure to certify election results, warning of a “constitutional crisis” that would implicate both the state’s courts and its legislature. U.S. Congressman Fred Upton (R) also “urg[ed] the president to concede and… the Board of State Canvassers to certify results.”
Nonetheless, since then, other Republicans in the state have worked to replace state and county board members that supported certifications with officials that would be willing to reject election results under similar circumstances. Fortunately, the state Supreme Court was able to provide a check in this case. With respect to the petition process specifically, the legislature could step in and try to clarify broad, vague requirements about clarity in full text of amendments if they are troubled by this outcome. Specificity of this type could provide stable, clear expectations for the Board, petition drafters, and signers alike; this case very easily could have ended another way if the Court’s partisan composition were flipped. As the party balance of this purple state court goes back and forth, petition circulators’ expectations regarding the rules they must obey should remain consistent. Though the full text presented by RFFA was accurate, it was difficult to read; the lack of guardrails against misleading statutory text could create real problems in the future if exploited by intentional bad actors. Though not addressed in this case, there are even more significant openings for mischief in the petition process: signature gatherers aren’t forbidden from outright lying to potential signers, something some legislators have already tried to address. The dispute over the vague statute, the compressed timeline for the court’s decision, and the opportunities for nefarious misrepresentation highlighted here suggest that the state’s initiative process as a whole might be due for an overhaul.
As it stands, the proposed initiative will now go to the voters. Whether the version printed on November’s ballots, hopefully appropriately formatted and kerned, will become law is going to be up to Michiganders themselves, actualizing the “leave it to the states” approach presented in Dobbs. The initiative’s success or failure will come down to substance, not spaces.