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Contact: contact@mifairelections.org
Lawmakers claim standing to sue and argue MI Governor and SOS infringed on their Constitutional rights when ballot initiatives were used to change election laws.
Two Michigan senators and nine members of the House of Representatives filed a petition with the Supreme Court of the United States (SCOTUS). The federal lawsuit argues that the U.S. Constitution specifically assigns the regulation of federal election law to state legislatures. The legislators seek enforcement of the Constitution’s Elections Clause, arguing that neither ballot initiatives nor the state’s executive branch had a legal right to usurp the legislature’s authority.
The petitioners cite constitutional violations to due process when ballot initiatives completely bypass the legislature to make changes to election law. At issue is individual legislator standing to bring Election Clause enforcement claims against state executive branch officials when the state legislature itself does not sue.
“This case is about whether the people‘s representatives can speak on their behalf in response to blatant violations of the U.S. Constitution by state officials. The governor and Secretary of State say no. We, on behalf of the people‘s representatives, say yes,” said William Wagner, an attorney with co-counsel on the petition, the Great Lakes Justice Center.
Representative Steve Carra (R), leader of the House Freedom Caucus and a plaintiff in the case, added, “The Founding Fathers feared the government would devolve into authoritarian rule. They wrote the Elections Clause into the Constitution of the United States specifically to put the power to protect elections into the hands of ‘We the People’ through their locally elected state legislators.”
Ballot Proposals 2 and 3 in 2018 and Proposal 2 in 2022 completely bypassed the legislature to usher in the most dramatic changes to Michigan’s election laws in a decade. As concerning, the changes are enshrined in Michigan’s Constitution, making them extremely difficult to change . The non-legislatively adopted provisions allow same-day voter registrations without valid proof of identity, a minimum of nine days and up to 29 days of early in-person voting, private funding of election administration, and no-excuse absentee voting procedures. The adopted ballot proposals also changed in-person voting procedures, reduced the board of canvasser authority, and created an independent redistricting commission.
The Elections Clause states, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” U.S. Constitution, Article 1, Section 4, Clause 1.
In December 2024 the District Court dismissed the 11 legislators’ original lawsuit, Lindsey v Whitmer (See MFEI article, MI Legislators File Suit). However, the court’s dismissal was based on the Court saying the legislators lacked standing, not that their case lacked merits. Standing is a term meaning that these legislators were not the proper, injured people to bring this case before a court.
According to the lower Court’s ruling, only the Senate and House by mutual agreement or the state’s attorney general have standing to sue. The 11 legislators, unwilling to take no for an answer, are asking the high court to review their case and grant them standing, so the courts can decide the case based on its merits.
Representative Steve Carra (R), leader of the House Freedom Caucus and a plaintiff in the case, is optimistic the high court will overturn the lower court’s rulings. “If I, as a legislator, don’t have standing to say election laws are being passed without legislative approval, then who does? The Elections Clause of the U.S. Constitution protects legislative authority to determine the times, places, and manner of elections.”
Representative Rachelle Smit, House Speaker Pro Tempore and a plaintiff in the case, agreed, “What happens to our Constitutional rights if those who would undermine our elections find ways to usurp the Constitution’s protections, and no one has ‘standing’ to fight for those rights?”
The petition’s “Statement of the Case” reads as follows:
….The Elections Clause is an express delegation of power to the state legislature to act with respect to federal elections. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804–05 (1995). The Elections Clause mandates state legislatures to regulate federal elections. To the contrary, citizen petition-led ballot proposals—initiatives—to amend the Michigan constitution regulating federal elections have been allowed in 2018 and 2022 without state legislative participation and approval. Remarkably, the state legislature never approved the 2018 and 2022 state constitutional amendments regulating federal elections. This same, invalid process may be used in 2026 elections and beyond.
“Unfortunately, federal court opinions have unintentionally created a checkerboard pattern of Elections Clause enforcement,” said lead Attorney Erick Kaardal, emphasizing the need for the high court to settle lower court inconsistencies. Kaardal specializes in constitutional and appellate law.
If SCOTUS grants the petition, it will issue a writ of certiorari, ordering the lower court to deliver its records regarding the case so that the higher court may review it. The U.S. Supreme Court grants a writ of certiorari to cases that have national significance and set precedents in harmonizing different rulings in the federal and state courts. The high court typically accepts less than 200 cases out of the more than 7,000 petitions filed every year.
“The courts need to decide these important legal questions,” Senator Lindsey explained, “especially as they relate to responsibilities granted to the state legislatures by the United States Constitution. I am honored to play a role in this effort to restore the rule of law in Michigan.”
Kaardal, who filed the original claim in September 2023, explained the legal challenge. “The state legislators’ original complaint in federal court challenged the constitutionality of the 2018 and 2022 Michigan constitutional amendments because the statewide referendum changed election laws without state legislative participation. Now, this legally unauthorized tactic is being weaponized across the country.
Patrice Johnson, founder and chair of Michigan Fair Elections Institute, commented regarding the importance of the case. “Outside actors know they can’t mislead legislatures to pass these election-integrity-killing laws, so they pour millions of dollars into running deceptive advertising campaigns to bamboozle voters into approving them. Now, these actors are trying to repeat the unconstitutional process and put Ranked Choice Voting on the ballot for 2026. We have to stop this. Now.”
Carra said the powers who sought to change Michigan’s elections laws “weaponized millions of dollars from out of state against the voting public of Michigan using deceptive tactics.” According to Ballotpedia, of the total $31.7 million used to promote Proposal 2-22 (the Constitutional amendment to change election law), 74% came from out of state, with $11.3 million pouring in from the Sixteen Thirty Fund, a 501(c)4 nonprofit based in Washington D.C. The George Soros Open Society Foundation, a 501(c)3 nonprofit based in New York, accounted for $1.2 million of the outstate money.
In the first round of the legislators’ legal battle, the U.S. District Court dismissed the complaint for what it concluded was lack of standing. The legislators then appealed to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the district court’s ruling. It did, however, state that the individual state legislators’ standing claim was fair to litigate
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The eleven legislator plaintiffs are Senators Jonathan Lindsey (R) and Jim Runestad (R) and Representatives Steve Carra (R), James DeSana (R), Joseph Fox (R) Neil Friske (R), Matt Maddock (R), Brad Paquette (R), Angela Rigas (R), Joshua Schriver (R), and Rachelle Smit (R).
The defendants in the lawsuit are Governor Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Jonathan Brater, director, Michigan Bureau of Elections.
Kaardal, a partner of Mohrman, Kaardal & Erickson, P.A., specializes in suing the government to improve it on behalf of regular people. Over the course of his three-decade career, Kaardal has overseen more than 1,000 cases and achieved 63 election integrity lawfare successes, including two U.S. Supreme Court victories. He graduated from Harvard and earned his law degree at University of Chicago Law School.
The Great Lakes Justice Center, co-counsel to the lawsuit, is a Michigan-based, non-profit 501(c)3 organization. GLJC’s mission is to speak truth on behalf of the persecuted and most vulnerable and to champion the cause of the defenseless and oppressed.
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Michigan Fair Elections Institute, a nonpartisan and nonprofit organization, is sponsoring the lawsuit to preserve legislator civil rights. MFEI is a Michigan-based, non-profit 501(c)3 organization. Its local task forces and chapters are dedicated to restoring fair and honest elections through education, local citizen participation, and litigation.
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