Aug 31, 202213 min read

STATE OF MICHIGAN DEPARTMENT OF STATE BOARD OF STATE CANVASSERS

In re Promote The

Vote’s Petition to

Amend Michigan’s

Constitution

Pure Integrity Michigan Elections

Challenges to the Form of Petition Filed by Promote The Vote to Amend Michigan’s Constitution

Erick G. Kaardal,

Mohrman, Kaardal & Erickson, P.A.

150 South Fifth Street, Suite 3100

Minneapolis, Minnesota 55402

Telephone: 612-341-1074

Email: kaardal@mklaw.com

Daniel J. Hartman, P52632

Law Offices Daniel J. Hartman

P.O. Box 307

Petoskey MI 49770

Work Phone: 231-348-5100

Work Fax: 231-622-8773

Work Email: danjh1234@yahoo.com

*Admitted to the State Bar of Michigan

Video link: https://cloud.castus.tv/vod/misenate/video/6310e25426df2e0008d96b8c?page=HOME

Introduction

Pure Integrity Michigan Elections is a Michigan non-incorporated association which advocates for election integrity. Pure Integrity Michigan Elections identifies two legal insufficiencies in the Promote the Vote’s petition to amend Michigan’s Constitution which justify the petition being rejected by the Board of State Canvassers. First, under vague provisions about the “fundamental right to vote,” the petition text unconstitutionally authorizes the state courts to replace the state legislature’s election code with a judicially created election code. Second, the petition text providing a citizen’s court “action” is legally insufficient for a proposed constitutional amendment. For these reasons, the Board of State Canvassers should reject the petition.

Argument

I. Under vague provisions about the “fundamental right to vote,” the petition text unconstitutionally authorizes the state courts to replace the state legislature’s election code with a judicially-created election code.

The petition text, by shifting election regulation from the state legislature to the state courts violates the U.S. Constitution’s independent state legislature doctrine. The U.S. Supreme Court is currently reviewing a case applying the independent state legislature doctrine to election laws. The case is Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al., Case No. 21-1271 (cert. granted Jun. 30, 2022). The question presented is:

Whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election.

The petitioners in Moore claim that state courts violate the Elections Clause of the U.S. Constitution, art. I, § 4, cl. 1, when they replace state legislative regulations with the state court’s own regulations “based on vague state constitutional provisions.”

Similarly, the proposed Michigan constitutional amendment invites Michigan’s state courts to replace state legislative regulations with the state court’s own regulations “based on vague state constitutional provisions.” The invitation to the state courts to enforce the “fundamental right to vote” is broad and vague as the text proposes:

(a) The fundamental right to vote, including but not limited to, the right, once registered, to vote a secret ballot in all elections. No person shall: (1) enact or use any law, rule, regulation, qualification, prerequisite, standard, practice, or procedure; (2) engage in any harassing, threatening, or intimidating conduct, or (3) use any means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.

For example, under the text, the court would be able to stop the state legislature from enacting “any law” which “has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.” Under such vague constitutional provisions, the text authorizes the state courts to replace the state legislature’s election code with a judicially-created election code.

But, under the independent state legislature doctrine, certain provisions in the U.S. Constitution grant each respective state legislature with sole plenary authority over subject matters in their respective states which federal and state law cannot abridge. The proposed independent state legislature doctrine basically provides that when the U.S. Constitution grants federal authority to “state legislatures,” no other body or law can interfere with the state legislature’s authority. For example, the Constitution delegates to “state legislatures” power over federal elections, Presidential electors and constitutional amendments. In turn, the President, Congress, federal agencies cannot interfere with the state legislature’s constitutionally-delegated power. And, additionally, the state’s own constitution, the state’s courts, nor the state’s governor can interfere with the state legislature’s authority. The U.S. Supreme Court cases cited for the independent state legislature doctrine include McPherson v. Blacker, 146 U.S. 1, 27 (1892) (“The constitution .... leaves it to the legislature exclusively[.]”) and Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000) (concurring opinion).

More recently, a Supreme Court dissenting opinion discussed the independent state legislature doctrine in Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 824–25 (2015). In Arizona State Legislature, the U.S. Constitution requires the “state legislature” to draw up new congressional districts in each state every ten years after the completion of the census. The State of Arizona by popular referendum created an independent commission to draw up new congressional districts every year rather than the state legislature. The Arizona State Legislature sued claiming the independent state legislature doctrine prohibited the new independent commission from drawing these new districts as opposed to the Arizona State Legislature. The Arizona State Legislature lost 5-4 at the Supreme Court.

However, the dissent was very clear about the application of the independent state legislature doctrine:

Just over a century ago, Arizona became the second State in the

Union to ratify the Seventeenth Amendment. That Amendment

transferred power to choose United States Senators from “the

Legislature” of each State, Art. I, § 3 “the people thereof.” The

Amendment resulted from an arduous, decades-long campaign

in which reformers across the country worked hard to garner

approval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was

interpret the constitutional term “the Legislature” to mean “the

people”? The Court today performs just such a magic trick with

the Elections Clause. Art. I, § 4. That Clause vests congressional

redistricting authority in “the Legislature” of each State. An

Arizona ballot initiative transferred that authority from “the

Legislature” to an “Independent Redistricting Commission.” The

majority approves this deliberate constitutional evasion by doing

what the proponents of the Seventeenth Amendment dared not:

revising “the Legislature” to mean “the people.”

Arizona State Legislature, 576 U.S. at 824–25.

Chief Justice Roberts continued in his dissent in Arizona State Legislature:

The next relevant precedent is this Court’s decision in McPherson

v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892). That case

involved a constitutional provision with considerable similarity to

the Elections Clause, the Presidential Electors Clause of Article

II: “Each State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors....” § 1, cl. 2 (emphasis

added). The question was whether the state legislature, as a body

of representatives, could divide authority to appoint electors

across each of the State's congressional districts. The Court

upheld the law and emphasized that the plain text of the

Presidential Electors Clause vests the power to determine the

manner of appointment in “the Legislature” of the State. That

power, the Court explained, “can neither be taken away nor abdicated.”

146 U.S., at 35, 13 S.Ct. 3 (emphasis added; internal quotation

marks omitted).

Id. at 839–40 (emphasis in original).

Further, the U.S. Court of Appeals for the Eighth Circuit in 2020, relying on McPherson and Bush, applied the independent state legislature doctrine to Article II in requiring an injunction to issue against the Minnesota Secretary of State enjoining the Secretary of State from changing election mail-in ballot deadlines due to the COVID pandemic:

We conclude the Electors are likely to succeed on the merits. This

follows from our determination that the Secretary’s actions in

altering the deadline for mail-in ballots likely violates the Electors

Clause of Article II, Section 1 of the United States Constitution.

The analysis is relatively straightforward. By its plain terms, the

Electors Clause vests the power to determine the manner of

selecting electors exclusively in the “Legislature” of each state.

U.S. Const. art. II, § 1, cl. 2; McPherson v. Blacker, 146 U.S. 1, 27,

13 S.Ct. 3, 36 L.Ed. 869 (1892) (“The constitution .... leaves it to

the legislature exclusively[.]”). And this vested authority is not just

the typical legislative power exercised pursuant to a state

constitution. Rather, when a state legislature enacts statutes

governing presidential elections, it operates “by virtue of a direct

grant of authority” under the United States Constitution. Bush v.

Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 76, 121 S.Ct. 471, 148

L.Ed.2d 366 (2000). Consequently, only the Minnesota

Legislature, and not the Secretary, has plenary authority to

establish the manner of conducting the presidential election in

Minnesota.

Simply put, the Secretary has no power to override the Minnesota

Legislature. In fact, a legislature’s power in this area is such that

it “cannot be taken from them or modified” even through “their

state constitutions.” McPherson, 146 U.S. at 35, 13 S.Ct. 3; see also

Palm Beach, 531 U.S. at 76–77, 121 S.Ct. 471. Thus, the Secretary’s

attempt to re-write the laws governing the deadlines for mail-in

ballots in the 2020 Minnesota presidential election is invalid.

However well-intentioned and appropriate from a policy

perspective in the context of a pandemic during a presidential

election, it is not the province of a state executive official to re

write the state’s election code, at least as it pertains to selection

of [P]residential [E]lectors.

Carson, 978 F.3d at 1059–60.

Likewise, the U.S. Supreme Court in Coleman v. Miller, 59 S.Ct. 972, 979 (1939) addressed, in part, whether the Kansas Lieutenant Governor could participate in state legislative ratification of federal constitutional amendments under Article V because a state executive officer was not a member of the “state legislature” under Article V. The U.S. Supreme Court was equally divided on the legal issue:

Second.—The participation of the Lieutenant Governor.—

Petitioners contend at, in the light of the powers and duties of

the Lieutenant Governor and his relation to the Senate under the

state constitution, as construed by the supreme court of the state,

the Lieutenant Governor was not a part of the ‘legislature’ so that

under Article V of the Federal Constitution, he could be

permitted to have a deciding vote on the ratification of

the proposed amendment, when the senate was equally divided.

Whether this contention presents a justiciable controversy, or a

question which is political in its nature and hence not justiciable,

is a question upon which the Court is equally divided and

therefore the Court expresses no opinion upon that point.

Coleman, 59 S.Ct. at 979.

Many legal scholars also support the independent state legislature doctrine. Professor Michael T. Morley wrote “The Intratextual Independent ‘Legislature’ and the Elections Clause” for Northwestern University Law Review. Ex. N, Michael Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. 847 (2015). Among other things, Professor Morley wrote:

Many states have delegated substantial authority to regulate

federal elections to entities other than their institutional

legislatures, such as independent redistricting commissions

empowered to determine the boundaries of congressional

districts. Article I’s Elections Clause and Article II’s Presidential

Electors Clause, however, confer authority to regulate federal

elections specifically upon State “legislatures,” rather than

granting it to States as a whole. An intratextual analysis of the

Constitution reveals that the term “legislature” is best understood

as referring solely to the entity within each state comprised of

representatives that has the general authority to pass laws. Thus,

state constitutional provisions or laws creating independent

redistricting commissions that purport to limit a state legislature’s

power to draw congressional districts or otherwise regulate

federal elections violate the Elections Clause.

Ex. N at 847.

In his article, Morley cited two footnotes in law review articles in support of the doctrine. The cited law review articles supporting the independent state legislature doctrine were:

Walter Clark, The Electoral College and Presidential Suffrage, 65 U. PA.

L. REV. 737, 741 (1917) (“[T]he exercise of such power [to

regulate presidential elections] is given to the state legislature

subject to no restriction from the state Constitution.”); Richard

D. Friedman, Trying to Make Peace with Bush v. Gore, 29 FLA. ST.

U. L. REV. 811, 835 (2001) (“Suppose, then, that the state

Constitution forbade felons to vote. If the legislature, operating

under the authority granted it by Article II rather than by the state

Constitution, decided that this limitation should not apply in

voting for [P]residential [E]lectors, the legislative choice should

prevail.”); James C. Kirby, Jr., limitations on the Power of State

Legislatures over Presidential Elections, 27 LAW & CONTEMP.

PRO. 495, 504 (1962) (“[S]tate legislatures are limited by

constitutional provisions for veto, referendum, and initiative in

prescribing the manner of choosing [P]residential [E]lectors,

but... state constitutional provisions concerning suffrage

qualifications and the manner of choosing electors do not limit

the substantive terms of legislation.”)

Id. at 869, n. 122.

In summary, under the independent state legislature doctrine, the petition text, by shifting election regulation from the state legislature to the state courts violates the U.S. Constitution’s independent state legislature doctrine. The U.S. Supreme Court is currently reviewing a case applying the independent state legislature doctrine to North Carolina courts adjudicating election laws. Similarly, the proposed Michigan constitutional amendment invites Michigan’s state courts to replace state legislative regulations with the state court’s own regulations “based on vague state constitutional provisions.” The invitation to the state courts to enforce the “fundamental right to vote” is too broad and too vague to pass constitutional muster under the independent state legislature doctrine. Under such vague constitutional provisions, the petition text unconstitutionally authorizes the state courts to replace the state legislature’s election code with a judicially-created election code.

II. The petition text providing a citizen’s court “action” is legally insufficient for a proposed constitutional amendment.

The petition text regarding “citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief” is legally insufficient because it is capable of many reasonable interpretations. The first interpretation, which is literal, is that the text creates “standing” to sue. A lack of plaintiff “standing” can lead to a court case being dismissed. Reading the petition text literally results in plaintiffs’ cases no longer being subject to dismissal for lack of standing.

The second interpretation, which is not literal, is that the purpose of the text is to create a cause of action so that citizens can sue if the specified rights are violated. But, this purpose begs the question, “Can the citizen sue the government under the legal text for violating the specified rights?” This question is critical because the State of Michigan has sovereign immunity from lawsuits unless expressly waived by law. Here, the legal text does not indicate that the State of Michigan is waiving its sovereign immunity, nor does it say that the citizens can sue the government.

To be sure, the petition text does define “person,” but then it doesn’t state specifically who the “persons” are that the citizens sue. The definition of “person” includes “an individual, association, corporation, joint stock company, labor organization, legal representative, mutual company, partnership, unincorporated association, the state or a

political subdivision of the state or an agency of the state, or any other legal entity, and includes an agent of the person.” However, the key paragraph fails to designate who the proposed defendants are to be in the proposed litigation:

Any Michigan or citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights created by this part (A) of subsection (4)(1) on behalf of themselves. Those actions shall be brought in the circuit court for the county in which a plaintiff resides. If a plaintiff prevails in whole or in part, the court shall award reasonable attorney’s fees, costs and disbursements.

The sentence fails to designate who is to be sued in these cases. The reader is left to guess whether the lawsuit will be against private individuals or government officials or both. By contrast, Georgia in the 2020 election amended its constitution expressly waiving sovereign immunity from lawsuit, creating a private cause of action to sue the government and preserving traditional defenses including lack of standing. Georgia Constitution, Article I, Section II, Paragraph 5(b)(1). The enacted Georgia constitutional amendment, in relevant part, states (amended portions underlined):

Paragraph V. What acts void. (a) Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them. (b)(1) Sovereign immunity is hereby waived for actions in the superior court seeking declaratory relief from acts of the state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof or any county, consolidated government, or municipality of this state or officer or employee thereof outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States. Sovereign immunity is further waived so that a court awarding declaratory relief pursuant to this Paragraph may, only after awarding declaratory relief, enjoin such acts to enforce its judgment. Such waiver of sovereign immunity under this Paragraph shall apply to past, current, and prospective acts which occur on or after January 1, 2021… (3) Unless otherwise provided herein, this Paragraph shall not affect the power or duty of a court to dismiss any action or deny relief based on any other appropriate legal or equitable ground or other limitation on judicial review, including, but not limited to, administrative exhaustion requirements, ante litem notice requirements, sanctions for frivolous petitions, standing, statutes of limitation and repose, and venue. The General Assembly by an Act may limit the power or duty of a court under this Paragraph to dismiss any action or deny relief.

Id. Georgia’s proposed constitutional amendment dealt squarely with the three legal principles involved: waiver of sovereign immunity from lawsuit; establishing that people have a cause of action to sue the government; and preserved the standing defense. The Georgia text “[s]overeign immunity is hereby waived for actions…” is an express waiver of sovereign immunity from suit creating a private cause of action to sue the government. The Georgia text referring to preserving the court’s power to dismiss a case on lack of standing is equally clear.

But, the Michigan petition, if it sought to create a private cause of action to sue state and local governments for election law violations at all, did not follow the Georgia model of clarity. Instead, it uses the phrase “citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief” which only confuses the legal issues. Is the intention of the Michigan petition to waive sovereign immunity, create a private cause of action to sue election officials, or to eliminate the defense of “lack of standing”? We simply can’t know from the hopelessly ambiguous text.

There is no way to fix the petition text because of the inherent ambiguities identified in the text. The petition signers, themselves, may not have realized that the purpose of the drafters because of the text’s ambiguities. In turn, the drafters of the text may not themselves have understood the legal principles involved: sovereign immunity; private cause of action; and standing. In fact from the text, it is clear they didn’t. Finally, the Board cannot know what the petition text means either because of its inherent ambiguities.

Conclusion

As explained above, two legal insufficiencies exist in the Promote the Vote’s petition to amend Michigan’s Constitution which justify the petition being rejected by the Board of State Canvassers. First, under vague provisions about the “fundamental right to vote,” the petition text unconstitutionally authorizes the state courts to replace the state legislature’s election code with a judicially-created election code. Second, the petition text providing a citizen’s court “action” is legally insufficient for a proposed constitutional amendment. For these reasons, the Board of State Canvassers should reject the petition.

Dated: August 30, 2022 Erick G. Kaardal