Order Michigan Supreme Court

Lansing, Michigan

September 8, 2022 Bridget M. McCormack,

Chief Justice

164755 & (7)(8)(14)(15)(16)(17) Brian K. Zahra

David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PROMOTE THE VOTE 2022, Elizabeth M. Welch,
Plaintiff, Justices

v SC: 164755
BOARD OF STATE CANVASSERS,
SECRETARY OF STATE, and DIRECTOR
OF ELECTIONS,
Defendants,
and
DEFEND YOUR VOTE,
Intervening Defendant.

_____________________________________/

On order of the Court, the motions for immediate consideration, to intervene, to file
a reply, and of Voters Not Politicians to file a brief amicus curiae are GRANTED. The
complaint for mandamus and declaratory relief is considered, and relief is GRANTED. We
direct the Board of State Canvassers (the Board) to certify the Promote the Vote petition
as sufficient for placement on the November 8 general election ballot by September 9,
2022.

The Board’s duty with respect to petitions is “limited to determining the sufficiency
of a petition’s form and content and whether there are sufficient signatures to warrant
certification.” Stand Up for Democracy v Secretary of State, 492 Mich 588, 618 (2012)
(opinion by MARY BETH KELLY, J.). It is undisputed that there are sufficient signatures to
warrant certification. The only challenge to the petition was that it failed to include all the
constitutional provisions that would be abrogated by the proposed amendments, as is
required by Const 1963, art 12, § 2 and MCL 168.482. See Protect Our Jobs v Bd of State
Canvassers, 492 Mich 763 (2012). We disagree. Instead, we conclude that the proposed
amendments would not abrogate any of the constitutional provisions identified by the
challenger. The Board thus has a clear legal duty to certify the petition.

We further direct the Secretary of State (Secretary) to include the ballot statement
for the Promote the Vote proposal drafted by the Director of Elections and approved by the
Board when the Secretary certifies to county clerks the contents of the ballot for the
November 8, 2022 general election.
 2

MCCORMACK, C.J. (concurring).

I agree with the Court’s decision to grant the complaint for mandamus and
declaratory relief and order the Board of State Canvassers (the Board) to certify the
Promote the Vote petition for the ballot. I write separately to address one issue that ought
to be clear but apparently isn’t—the Board’s role in certifying petitions is very limited.
The Board’s duty is to determine whether a petition has sufficient signatures and whether
its form complies with statutory requirements.1

There is no dispute about the signatures or form of this petition. Rather, the
challengers believe that the petition violates Article 12, § 2 of the Michigan Constitution
because its substance abrogates various provisions of the Constitution without publishing
those provisions. This quintessential legal question is far outside the Board’s legal role
(and expertise). See, e.g., Protect Our Jobs v Bd of State Canvassers, 492 Mich 763, 776-
784 (2012) (determining the meaning of “alter” and “abrogate” in Article 12, § 2).

The challengers have a forum in which to have this objection addressed: court. See
MCL 600.4401(1); MCR 7.203(C)(2).

Absent an insufficient number of signatures or a petition form that doesn’t comply

with unambiguous statutory requirements, the Board lacks the authority to refuse to certify
a petition. Because the challenger here alleged neither of those defects, the Board had a
duty to certify the petition. See Reproductive Freedom for All v Bd of State Canvassers,
___ Mich ___ (September 8, 2022) (Docket No. 164760); Mich Civil Rights Initiative v Bd
of State Canvassers, 268 Mich App 506, 520 (2005) (“Because there is no dispute that the
form of the petition is proper or that there are sufficient signatures, we conclude that the
board is obligated to certify the petition, and thus, breached its clear legal duty to certify
the petition.”). The Board’s failure to do so seems to be disappointing evidence of the
weakened state of our polity.

1
While in Stand Up for Democracy v Secretary of State, 492 Mich 588, 618 (2012) (opinion
by MARY BETH KELLY, J.), the lead opinion stated that “[t]he board’s duty with respect to
referendum petitions is limited to determining the sufficiency of a petition’s form and content
and whether there are sufficient signatures to warrant certification,” the statutes cited for that
proposition address only the Board’s authority to approve the “form” and “sufficiency” of the
petition. See id. at 601 n 23, 618 n 58 (citing various statutes). The statutes do not explicitly
authorize the Board to make determinations about the “content” of the petition. So I question
whether that statement from Stand Up for Democracy is correct. See Reproductive Freedom
for All v Bd of State Canvassers, ___ Mich ___, ___ n 1 (September 8, 2022) (Docket No.
164760) (MCCORMACK, C.J., concurring).
 3

BERNSTEIN, J. (concurring).

I acknowledge, as I must, that mandamus is an extraordinary remedy. I vote to grant

mandamus relief today because of my consistent belief in the importance of elections in
our representative democracy.2 Throughout the years, I have voted to grant relief in a
number of election cases. Rocha v Secretary of State, ___ Mich ___; 974 NW2d 822 (2022)
(VIVIANO, J., dissenting) (joining Justice VIVIANO’s dissenting statement that would grant
the plaintiff’s request for mandamus relief to be placed on the August 2022 primary ballot);
Raise the Wage MI v Bd of State Canvassers, 509 Mich ___, ___; 970 NW2d 677, 678
(2022) (BERNSTEIN, J., concurring in part and dissenting in part) (“I believe it is clear that
a union label on an initiative petition is not subject to type-size requirements as set forth in
MCL 168.482.”); Attorney General v Bd of State Canvassers, 500 Mich 907, 914 (2016)
(BERNSTEIN, J., dissenting) (“I would reverse the Court of Appeals rather than order
expedited oral argument, as I believe that the Court of Appeals clearly erred. I write to
further explain why I believe that appellant Jill Stein has met the statutory requirements for
a recount.”).3 In numerous other cases where the legal issue before us was less clear-cut, I
have voted for either further consideration or oral argument, given my strong interest in
making sure we get these cases right. See Johnson v Bd of State Canvassers, ___ Mich
___, ___; 974 NW2d 235, 239 (2022) (BERNSTEIN, J., dissenting) (“Because I believe this
case presents significant legal issues worth further consideration, I would order full briefing
in this case and hold oral argument next week to ensure that the interests of Michigan voters
are fully considered.”); Markey v Secretary of State, ___ Mich ___; 974 NW2d 255 (2022)
(would have ordered oral argument); Craig v Bd of State Canvassers, ___ Mich ___; 974
NW2d 240 (2022) (would have granted the bypass and ordered oral argument); Cavanagh
v Bd of State Canvassers, ___ Mich ___; 974 NW2d 549 (2022) (would have ordered oral
argument); Davis v Highland Park City Clerk, ___ Mich ___; 974 NW2d 550 (2022)
(WELCH, J., dissenting) (joining Justice WELCH’s dissenting statement that would have
found the legal issues worthy of further consideration); League of Women Voters of Mich
v Secretary of State, 506 Mich 886, 887-888 (2020) (BERNSTEIN, J., dissenting) (“Because
absentee ballots will undoubtedly play a significant role in the upcoming general election,
I would hold oral argument in this case ahead of that election in order to ensure that the
interests of Michigan voters are thoroughly examined and considered before votes are

2
“ ‘A share in the sovereignty of the state, which is exercised by the citizens at large, in voting
at elections is one of the most important rights of the subject, and in a republic ought to stand
foremost in the estimation of the law.’ ” Attorney General v Bd of State Canvassers, 500 Mich
907, 916 n 3 (2016) (BERNSTEIN, J., dissenting), quoting Hamilton, Second Letter from
Phocion (April 1784), as published in The Papers of Alexander Hamilton Volume III: 1782–
1786, Syrett & Cooke, eds (New York: Columbia University Press, 1962), pp 544-545.
3
My vote in this case is consistent with my vote and my separate statement in Reproductive
Freedom for All v Bd of State Canvassers, ___ Mich ___ (September 8, 2022) (Docket No.
164760) (BERNSTEIN, J., concurring).
 4

tallied, in order to avoid any potential disruption to the election process. The people of
Michigan deserve nothing less.”). I believe that my long-expressed interest in letting the
people of Michigan make their own decisions at the ballot box speaks for itself.
Accordingly, I join this Court’s decision to grant mandamus relief.

WELCH, J. (concurring).

I write separately to explain why I voted in favor of ordering the Board of State
Canvassers (the Board) to certify the Promote the Vote petition. The Board’s duty with
respect to petitions is “ ‘limited to determining the sufficiency of a petition’s form and
content and whether there are sufficient signatures to warrant certification.’ ” Unlock Mich
v Bd of State Canvassers, 507 Mich 1015, 1015 (2021), quoting Stand Up for Democracy
v Secretary of State, 492 Mich 588, 618 (2012) (opinion by MARY BETH KELLY, J.). The
Board preliminarily approved the form and content of the petition prior to circulation in
February 2022, and that preliminary approval was not challenged in court. It is undisputed
that there are sufficient signatures to warrant certification. In a postcirculation challenge
to the petition before the Board, as well as before this Court, Defend Your Vote argued that
the petition would abrogate Const 1963, art 2, §§ 2, 5, and 9; Const 1963, art 6, § 5; and
Const 1963, art 7, § 8, and that the petition failed to republish these provisions as required
by Const 1963, art 12, § 2 and MCL 168.482. Therefore, according to Defend Your Vote,
the Board has a clear legal duty to withhold certification of the petition. I disagree. The
proposed amendments will not abrogate any of the constitutional provisions identified by
the challenger explicitly or by implication.4

4
While the Court does not decide the issue today, like Chief Justice MCCORMACK, I question
whether the Board has legal authority to consider and resolve republication challenges as a
part of its duty to review the form of the petition under the Michigan Election Law, MCL 168.1
et seq. See Citizens Protecting Michigan’s Constitution v Secretary of State, 324 Mich App
561, 585 (2018) (“The Board’s duty is to certify the proposal after determining whether the
form of the petition substantially complies with statutory requirements and whether the
proposal has sufficient signatures in support.”). In Protect Our Jobs v Bd of State Canvassers,
492 Mich 763, 778 (2012), this Court held that “petition supporters must fully comply with
the requirement that the petition republish any existing constitutional provision that the
proposed amendment, if adopted, would alter or abrogate.” See also Const 1963, art 12, § 2;
MCL 168.482(3). But while this Court’s authority to resolve legal disputes concerning alleged
republication defects is clear, the scope of the Board’s authority to withhold certification
because of an alleged republication defect is debatable. Const 1963, art 12, § 2 contains a
republication requirement, but it does not mention the Board, and Const 1963, art 12, § 2
describes the role of the “person authorized by law” to receive a petition proposing a
constitutional amendment but does not mention the republication requirement. While MCL
168.482(3) provides that republication of existing provisions of the Constitution that the
proposal would “alter or abrogate” is required, MCL 168.476(1) merely provides that “[u]pon
receiving notification of the filing of the petitions, the board of state canvassers shall canvass
the petitions to ascertain if the petitions have been signed by the requisite number of qualified
 5

“[A]n amendment only abrogates an existing provision when it renders that

provision wholly inoperative.” Protect Our Jobs v Bd of State Canvassers, 492 Mich 763,
773 (2012). “An existing constitutional provision is rendered wholly inoperative if the
proposed amendment would make the existing provision a nullity or if it would be
impossible for the amendment to be harmonized with the existing provision when the two
provisions are considered together.” Id. at 783 (citation omitted). “Because any
amendment might have an effect on existing provisions, the ‘abrogation’ standard makes
clear that republication is only triggered by a change that would essentially eviscerate an
existing provision.” Id. at 782. “[W]hen the existing provision would likely continue to
exist as it did preamendment, although it might be affected or supplemented in some
fashion by the proposed amendment, no abrogation occurs.” Id. at 783. “On the other
hand, a proposed amendment more likely renders an existing provision inoperative if the
existing provision creates a mandatory requirement or uses language providing an
exclusive power or authority because any change to such a provision would tend to negate
the specifically conferred constitutional requirement.” Id. The amendments proposed by
the Promote the Vote petition can be harmonized with existing constitutional provisions,
and thus, the proposed amendments do not abrogate Const 1963, art 2, §§ 2, 5, and 9; Const
1963, art 6, § 5; or Const 1963, art 7, § 8.

The proposed amendments’ requirement that in-person voting be permitted nine

days before election day and that results not be generated or released before 8:00 p.m. on
election day would not render Const 1963, art 2, § 5 inoperative. Election day would
remain the first Tuesday after the first Monday in November, and election results would
not be released until after the close of the polls on election day. The expansion of early in-
person voting days in Michigan has no more of an effect on the Election Day Clause than
the preexisting practice of early voting by mail. See Const 1963, art 2, § 4. Accordingly,
the proposed and existing constitutional provisions can be harmonized.

The proposed amendments would also create an explicit right to vote held by
persons who are “elector[s] qualified to vote in Michigan,” and it would prohibit the
enactment or enforcement of laws that have the “intent or effect of denying, abridging,
interfering with, or unreasonably burdening the fundamental right to vote.” (Capitalization
altered.) The proposed amendments will limit the substance of statutory laws that can be
proposed and adopted by the people pursuant to Const 1963, art 2, § 9 as well as local laws
that can be enacted by the governing bodies of counties under Const 1963, art 7, § 8. But

and registered electors.” Moreover, our caselaw demonstrates, and the parties concede, that
whether a proposed amendment would abrogate an existing constitutional provision frequently
requires legal analysis and often will not be readily apparent from the face of a petition. I
acknowledge that in Stand Up for Democracy v Secretary of State, 492 Mich 588 (2012), and
in some other decisions cited by Justice ZAHRA, the Court has suggested that the Board has
some authority to review the content of a petition. But as the Chief Justice points out, the
statutory and constitutional authority for these statements is questionable.
 6

the ability to propose or enact laws through those constitutional mechanisms would
continue to exist and operate as it did preamendment.5 Likewise, the proposed
amendments’ creation of a cause of action for the violation of the right to vote that must be
filed in the circuit court of the county in which a plaintiff resides will affect some aspects
of this Court’s rulemaking authority, but the Court would retain its authority to establish
rules of practice and procedure for the courts under Const 1963, art 6, § 5.

The final abrogation challenge concerns Const 1963, art 2, § 2, which provides that
“[t]he legislature may by law exclude people from voting because of mental incompetence
or commitment to a jail or penal institution.” The proposed amendments would explicitly
enshrine certain voting rights that will be held by “[e]very citizen of the Unites States who
is an elector qualified to vote in Michigan,” and these rights would be created by adding
new subsections to Const 1963, art 2, § 4. Under Const 1963, art 2, § 1, “[e]very citizen
of the United States who has attained the age of 21 years,[6] who has resided in this state
six months, and who meets the requirements of local residence provided by law, shall be
an elector and qualified to vote in any election except as otherwise provided in this
constitution.” (Emphasis added.) Thus, Article 2, § 1 expressly acknowledges that who is
qualified to be an elector in Michigan can be limited by other provisions of the Constitution,
and Article 2, § 2 expressly grants the Legislature permissive authority to enact statutes
imposing such limitations as to mentally incompetent or incarcerated individuals.7 Nothing
about that authority has changed with the proposed amendments. While the proposed
amendments of Article 2, § 4(1)(a) might affect the manner in which the Legislature may
exercise the permissive authority granted by Article 2, § 2, it does not implicitly or
explicitly forbid the Legislature from enacting a statute under the authority expressly

5
Const 1963, art 2, § 9 currently states that “[t]he power of initiative extends only to laws
which the legislature may enact under this constitution.” In other words, any constitutional
limitations imposed on the Legislature’s lawmaking authority automatically apply to the
initiative power. The self-executing language in Article 2, § 9 provides a built-in mechanism
to harmonize this part of the Constitution with any new lawmaking limitations that the
proposed amendments would impose on the Legislature. Relevant to this case, the Promote
the Vote petition republished Article 4, § 1, thus acknowledging the proposed new limitations
on the Legislature’s lawmaking authority.
6
But see US Const, Am XXVI, § 1, which provides, “The right of citizens of the United States,
who are eighteen years of age or older, to vote shall not be denied or abridged by the United
States or by any State on account of age.”
7
This is the only constitutional language that gives the Legislature its current authority to
exclude incarcerated individuals from the ballot box, as it has done through MCL 168.492a.
Otherwise, such an action would likely be an unconstitutional imposition of additional
qualifications on who can vote that go beyond what is permitted under Const 1963, art 2, § 1.
 7

granted to it by Article 2, § 2. The existing and proposed constitutional provisions can

exist and operate in harmony, and thus no abrogation will occur.8

The proposed constitutional amendments will not, if adopted, abrogate any existing
constitutional provisions that the challenger claims should have been republished.
Therefore, the Board has a clear legal duty to certify the petition for presentation to the
electorate.

I respectfully concur in the Court’s judgment.

ZAHRA, J. (dissenting).

I dissent from the conclusion of the majority order that the Board of State
Canvassers has a clear legal duty to certify the petition for presentation to the electorate.
The constitutional amendment proposed by plaintiff seeks to amend the Michigan
Constitution to expressly prohibit the Legislature from enacting a law that would deny
qualified electors the fundamental right to vote. 9 Const 1963, art 2, § 1 sets forth four
criteria that must be satisfied for a person to be a qualified “elector,”10 “except as otherwise
provided in [the Michigan] constitution.”11 Article 2, § 2 provides otherwise; it states that
“[t]he legislature may by law exclude persons from voting because of mental incompetence
or commitment to a jail or penal institution.” In other words, that provision allows the
Legislature to exclude certain individuals from voting even if they meet the eligibility
criteria for being an “elector” set forth in Const 1963, art 2, § 1.12

8
While existing statutes that were previously enacted pursuant to Article 2, § 2 might require
modification to remain constitutionally enforceable if voters approve the amendments set forth
in the petition, this consideration is irrelevant to the abrogation analysis.
9
See Proposed Amendment, art 2, § 4(1)(a).
10
By “qualified elector,” I mean a person who is “an elector and qualified to vote in any
election.” Const 1963, art 2, § 1; see also MCL 168.10 (“[T]he term ‘qualified elector’, as
used in this act, means a person who possesses the qualifications of an elector as prescribed in
section 1 of article II of the state constitution of 1963 and who has resided in the city or
township 30 days.”).
11
A person must: (1) be a citizen of the United States, (2) be at least 18 years of age, (3) have
resided in Michigan six months, and (4) meet the requirements of local residence provided by
law. Const 1963, art 2, § 1; US Const, Am XXVI, § 1.
12
It is worth noting that the Legislature has enacted a law providing that a person who has
been convicted and sentenced to a term of incarceration “shall not vote, offer to vote, attempt
to vote, or be permitted to vote at an election while confined.” MCL 168.758b. See also MCL
168.492a (“An individual who is confined in a jail after being convicted and sentenced is not
eligible to register to vote.”).
 8

The proposed amendment of Article 2, § 4 provides that qualified electors in

Michigan, i.e., individuals who meet the eligibility criteria in Article 2, § 1, shall have
certain rights, including the “fundamental right to vote.” It expressly provides13 that:

THE FUNDAMENTAL RIGHT TO VOTE, INCLUDING BUT

NOT LIMITED TO Tthe 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.[14]

The challengers assert that this latter provision conflicts with Article 2, § 2’s grant
of authority to exclude persons from voting because of mental incompetence or
incarceration. Further, challengers highlight that Article 12, § 2 of Michigan’s Constitution
requires that proposed amendments, like in this case, state the “existing provisions of the
constitution which would be altered or abrogated thereby, and the question as it shall appear
on the ballot shall be published in full as provided by law.” “The purpose of the provision
is to definitely advise the elector as to the purpose of the proposed amendment and what
provision of the constitutional law it modified or supplanted.”15 Accordingly, the
challengers reason that because the proposed amendment of Article 2, § 4 conflicts with
Article 2, § 2’s grant of authority, and because Article 2, § 2 was not published in the
petition, the Board of State Canvassers properly declined to certify the petition for
presentation to the electorate.16

13
Proposed additions to the Constitution are capitalized; proposed deletions are stricken.
14
It is hard to imagine a more expansive prohibition: “person” is defined very broadly; the
prohibitions are stated very expansively; both intended and unintended effects are covered by
the prohibition; and the impact on the right can be minimal (i.e., the right cannot be
“INTERFER[ED] WITH, OR UNREASONABLY BURDEN[ED]”).
15
Massey v Secretary of State, 457 Mich 410, 417 (1998) (quotation marks and citation
omitted).
16
Chief Justice MCCORMACK asserts that “[t]he Board’s duty is to determine whether a petition
has sufficient signatures and whether its form complies with statutory requirements” and
questions the Court’s decision in Stand Up for Democracy v Secretary of State, 492 Mich 588,
618 (2012) (opinion by MARY BETH KELLY, J.), in which the lead opinion stated that “[t]he
board’s duty with respect to referendum petitions is limited to determining the sufficiency of
 9

In response, plaintiff argues that since only qualified electors have the fundamental
right to vote, enactment of a law excluding certain persons from voting simply means that
“such persons would not be qualified to vote in Michigan,” and thus, “they would not be
entitled to ‘the fundamental right to vote.’ ” The flaws in this argument are apparent. It is
hard to think of a more wholesale deprivation of a right than excluding a person from the
class of persons entitled to claim that right in the first place. It would be quite a stretch to
conclude that the Legislature can enact a law that strips a person of the status needed to
exercise a right without “DENYING, ABRIDGING, [or] INTERFERING WITH” that
right.17 Simply stated, while Article 2, § 2 allows the Legislature to exclude certain
qualified electors from voting, the proposed constitutional amendment would prohibit the
Legislature from doing just that. These two provisions simply cannot be read
harmoniously. The adoption of proposed Article 2, § 4(1)(a) would render Article 2, § 2
wholly inoperative. Accordingly, the text of Article 2, § 2 was required to be published in
plaintiff’s petition.

Article 2, § 1, which provides, “Every citizen of the United States who has attained
the age of [majority], who has resided in this state six months, and who meets the
requirements of local residence provided by law, shall be an elector and qualified to vote
in any election except as otherwise provided in this constitution,” does not save plaintiff’s
claim. (Emphasis added.) If the proposed amendment is adopted, the Constitution would
both provide that the Legislature may prohibit prisoners and those who are mentally
incompetent from voting and that the Legislature may not enact any “QUALIFICATION”
that “HAS THE INTENT OR EFFECT OF DENYING, ABRIDGING, INTERFERING
WITH, OR UNREASONABLY BURDENING THE FUNDAMENTAL RIGHT TO
VOTE.” In other words, the Constitution would contain inconsistent provisions, meaning
the proposed constitutional amendment would render the existing constitutional provision,
Article 2, § 2, wholly inoperable.

a petition’s form and content and whether there are sufficient signatures to warrant
certification.” However, the Chief Justice is mistaken and conveniently ignores additional
caselaw in which the Court has considered abrogation, i.e., the content of a petition. Citizens
Protecting Michigan’s Constitution v Secretary of State, 503 Mich 42 (2018); Protect Our
Jobs v Bd of State Canvassers, 492 Mich 763 (2012); Mich Alliance for Prosperity v Bd of
State Canvassers, 492 Mich 763 (2012); Citizens for More Mich Jobs v Secretary of State, 492
Mich 763 (2012); The People Should Decide v Bd of State Canvassers, 492 Mich 763 (2012).
17
Indeed, one can glean from the enacted text of the laws referenced in note 12 of this statement
that the Legislature passed them with the intent of depriving certain incarcerated persons of
the right to vote. Thus, the laws would appear to violate the intent element of the prohibition
in the proposed amendment as well.
 10

Further, preapproval of the petition by the Board of State Canvassers does not bar a
challenge to the form or content of plaintiff’s petition at this stage of the process. In Protect
Our Jobs v Bd of State Canvassers,18 the challenged petition forms were also preapproved,
challenges were made to the form and content of the petitions after signatures were
collected and submitted for approval and the Board of State Canvassers deadlocked
regarding certification. This Court reviewed the substantive challenges and refused to issue
a mandamus order with regard to one proposed constitutional amendment that would have
abrogated another provision of the Constitution. In other words, the fact that the petitions
were preapproved by the Board did not prevent this Court from later (after signatures were
collected) addressing whether the petition forms violated the abrogation provision. Our
order in Unlock Mich v Bd of State Canvassers,19 simply does not support the notion that
the Board of State Canvassers’ approval of a petition bars legal challenges made after
signatures have been collected. The predominant challenge in that case did not involve the
petition’s form. Instead, the predominant argument was that the signature-gathering
process was riddled with fraud. This Court noted that the Board of State Canvassers had
approved the form, the Bureau of Elections had determined that there were sufficient valid
signatures, and Board of State Canvassers had rejected a motion to investigate the
collection of the signatures, and thus the Board of State Canvassers had a duty to certify
the petition.20

Finally, I renew my call to the Legislature to amend our state election laws to
provide more time between the certification of candidates and policy questions to be placed
on the general election ballot and the date by which the ballot must be finalized and sent
for production. As I stated in Johnson v Bd of State Canvassers:

Election-law cases have very concrete deadlines that are necessary to

facilitate the printing and distribution of ballots. The current process
provides very little time between decisions of the Board of State Canvassers
and the date ballots must be finalized for printing. In the

18
Protect Our Jobs v Bd of State Canvassers, 492 Mich 763 (2012).
19
Unlock Mich v Bd of State Canvassers, 507 Mich 1015 (2021).
20
Id. Although some challenges regarding the form were made, after the Board of State
Canvassers preapproved the form and content of the petition, the challenger immediately sued
the Board of State Canvassers, asserting that the Board of State Canvassers should not have
approved the form and substance of Unlock Michigan’s petition. The Court of Appeals
dismissed that complaint, and this Court denied the subsequent application for leave to appeal.
Keep Mich Safe v Bd of State Canvassers, unpublished order of the Court of Appeals, entered
August 17, 2020 (Docket No. 354188), lv den 506 Mich 915 (2020). In the instant case,
nobody filed an action after the Board preapproved plaintiff’s petition, and thus this is the first
opportunity this Court has had to review the form of plaintiff’s petition.
 11

present case, there were only eight days between the vote of the Board of
State Canvassers and the date a disposition was needed from this Court.
These cases can present substantial and complex questions of law, which
generally require extensive briefing and cannot properly be resolved in a
matter of days. . . . The people of Michigan deserve thoughtful, cogent, and
well-reasoned decisions from this Court. The Legislature should amend the
Michigan Election Law[21] to ensure that the judicial system has ample time
to meaningfully review such matters, which are vitally important to the
people of Michigan.[22]

This year is not an anomaly. In the past decade, the people of Michigan have
increasingly exercised their right to direct democracy through proposals to enact legislation
and amend our Constitution. With each such proposal there are unique and complex legal
challenges that require in-depth development and thoughtful review by this Court.
Legislation to provide this Court at least six weeks between the certification of the ballot
by the Board of State Canvassers and the date by which the ballot must be finalized should
be enacted before the 2024 primary and general elections.

Because Article 2, § 2 would be abrogated by the proposed amendment and it was

not republished in the petition, plaintiff’s proposal cannot be placed on the ballot as a matter
of law. Because the Board of State Canvassers does not have a clear legal duty to certify
the proposal for the ballot, plaintiff is not entitled to mandamus relief. Accordingly, I
dissent.

VIVIANO, J., joins the statement of ZAHRA, J.

21
MCL 168.1 et seq.
22
Johnson v Bd of State Canvassers, ___ Mich ___, ___; 974 NW2d 235, 236 (2022)
(ZAHRA, J., concurring).

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 8, 2022
a0906
Clerk