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Election Law Briefing: Key Points to Consider in Overseeing the Local Ballot Initiative Process

On its face, a local ballot initiative seems like a straightforward process: petitions are circulated, signatures are counted, and ballot language is approved; in reality, there are many factors to consider. Local ballot initiatives are created by individual statutes that do not share uniform processes and requirements. Further, the Michigan Election Law (“Election Law”) imposes requirements that vary depending on the type of ballot initiative. As the entities generally charged with receiving ballot initiative petitions, townships (clerks, in particular) should be aware of these issues to ensure a proper review.

 Overview of Local Ballot Initiatives

There are many individual statutes that provide for ballot initiatives for numerous issues, including – to name just a few – township memorials, civil service systems, local police and fire civil service systems, township annual meetings and officer salaries, consolidation of township libraries, township water and sewage ordinances, incorporation as a charter township, various interlocal agreements, dissolution of economic development corporations, creation of housing commissions, issuance of bonds, and zoning ordinance amendments. Instead of creating one statute that provides a consistent and comprehensive process, the legislature took a more piecemeal approach throughout the years. This has resulted in differences between local ballot initiative processes depending on the issue. It goes without saying that this creates headaches for both petitioners organizing a local ballot initiative effort and township clerks in reviewing initiative petitions.

Scope of Township Review and Statutory Requirements

When a township clerk receives a petition for a local ballot initiative, there cannot be one standard review process due to the wide range of statutes and requirements. The first step should be to review the applicable ballot initiative statute to determine the role the clerk (or township) plays and the scope of his or her review. Does it specifically say that the clerk should only count signatures? Does it more generally state that the clerk should determine whether the petitions are “adequate”? The following are some examples of how this varies by statute:

Petition Type Who Reviews? Scope of Review
Ordinance related to water supply and sewage disposal (MCL 41.350s). A person or persons under oath. Signatures verified by person under oath. Clerk determines number of signatures and has power to reject signatures and petitions “as city clerks possess by law.”
Incorporating as charter township (MCL 42.3). Township clerk. Township clerk checks signatures on petitions against registration cards and, if the number of required signatures is present, must perform all acts to bring the question to the ballot.
Creation of compensation committee (MCL 42.6a). Township clerk. Unspecified scope of review.
Zoning ordinance (MCL 125.3402). Township clerk. Determines that the petition is “adequate”.

As you can see, variations exist in these three statutes. In reviewing the statutes overall, though, they all have the same type of underlying general requirements. For instance, all the statutes have specific signature requirements, but not all statutes specifically state whether the scope of review includes review of the signatures. The first two statutes state that signatures should be reviewed and who should verify the signatures, the third does not specify a scope of review, and the last one merely implies that the clerk should verify the signatures as part of the determination of whether the petition is “adequate.”

Additionally, all the statutes above reference the Election Law in stating that it applies to petitions. As you see, despite this requirement, none of the statutes specifically state how the determination is made as to whether the Election Law is satisfied. In the last statute above, does a determination of whether a petition is “adequate” include ensuring it complies with the Election Law? The second statute states that the question must be submitted to the ballot if signatures are present. Does this mean that the clerk is not empowered to check the petition against the Election Law requirements, even though it is referenced elsewhere by the statute? These are just a couple of the unanswered questions that township clerks face in relation to the scope of their review for local ballot initiatives.

Once the scope of the review and the proper reviewer are determined, it is important to verify all the requirements of the statute. These will largely become apparent as you review the statute and scope of your review, but be sure to catch all of them, including those that relate to:

  • Any process set forth for the acceptance and review of petitions.
  • Time limitations related to submission of the petitions.
  • Signature requirements.
  • Restrictions on the substance of what can be petitioned to place on the ballot.
  • The sections, if any, of the Election Law referenced.

Election Law Considerations

There are two main areas in which the Election Law applies to the local ballot initiative process: petition requirements and the timeline for acceptance and certification of petitions and ballot language.

Sec 482 and 544c of the Election Law provide the requirements for petitions, with Sec 482 being the more generally applicable section to local ballot initiative petitions. The sections create requirements related to the physical size of the petition, headings, statements, summaries and descriptions of the initiative, signature line format, legal warning statements, and formatting for elector and circulator signatures and information. There is some overlap between these two sections, so it is important to confirm which section applies based on the type of ballot initiative and its underlying statute.

For an additional layer to consider, the applicability of the requirements stated above will depend on how the statute for a local ballot initiative references the Election Law. This is generally done in one of two ways:

  • “the petitions are subject to the Michigan Election Law”
  • “the petitions are subject to Sec 488 of the Michigan Election Law”

If the Election Law is applied generally, as in the first example, its provisions are applied to the petitions in a broad manner. When Sec 488 is applied, only certain provisions under Sec 482 will apply as it relates to the petitions. It is critical to understand this interplay between the Election Law and the petitions at issue to know which requirements to impose on the petitions.

In addition to petitions, the Election Law also generally applies to local ballot petitions in relation to filing deadlines for ballot questions. Sec 646a requires that petitions for a local ballot petition must be submitted to the proper local clerk at least 14 days before the date the ballot wording must be certified to the local clerk, which is no later than 4 p.m. on the twelfth Tuesday before the election. If this occurs, the ballot wording must be certified to the county clerk at least 82 days before the election.

Strict Compliance Required

Until recently, Michigan courts have taken the position that “substantial compliance” was sufficient in relation to petitions. Under this view, a ballot initiative petition could be legally acceptable even if some aspects of the law were not followed precisely. For instance, a petition would have substantially complied if it missed a minor requirement, such as a required font type size, but otherwise fulfilled all relevant requirements, particularly those related to more “important” things like the number of signatures.

In 2012, the Michigan Supreme Court ruled that “substantial compliance” cannot be a consideration in determining whether petitions complied with the Election Law. Stand Up v Sec of State, 492 Mich 588 (2012). The Court found that the particular requirements for petitions within the Election Law were mandatory requirements and that the legislature would have added language about substantial compliance if that is what it intended, as it did in other sections of the law. This places a burden on both the petitioners organizing the ballot initiative and the township tasked with reviewing petitions for compliance with the law to closely scrutinize every requirement.

Example:  Ballot Initiatives to Limit or Prohibit Marihuana Establishments

Ballot initiative petitions under Sec 6 of the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”) provide a good (and popular, as of late) example of the many moving parts at issue with local ballot initiatives. It also is a good example of a statute written in an unclear manner that does not provide great direction to local governments. The statute does not say anything about local governments or clerks accepting and reviewing petitions to determine sufficiency. As mentioned earlier, this scope of review is usually set forth by statutes. Some have argued that this means there is no legal authority to review these positions, though a strong argument exists that the review by local clerks is the obvious intent of the law.

If we concede the fact that township clerks should review MRTMA petitions and determine whether they comply with the law, we next look to the other requirements and limitations for the process:

  • To initiate an ordinance to either prohibit or limit the number of marihuana establishments.
  • Petition must be signed by qualified electors.
  • Number of signatures must be greater than 5% of the votes cast for governor by qualified electors in the municipality at the last gubernatorial election.
  • Petition is subject to Sec 488 of the Election Law.

Based upon these requirements, a township clerk reviewing petitions submitted under the MRTMA has various aspects to consider including the substance of the question on the petition, the number of signatures required, the registration status of those that signed, and the relevant sections of the Election Law. Remember, since Sec 488 is referenced by the MRTMA, only certain provisions of the Election Law apply as it relates to the petitions. If any aspect of these do not meet the legal requirements, there exists a basis to reject the submitted petitions.

Rejecting Petitions

From this brief review, you can see that there are many issues to consider related to local ballot initiatives and petitions. It takes significant effort at the outset of a petition review to simply know the scope of review, let alone the actual statutory requirements. Further, for total compliance with the law, the Michigan Supreme Court has not left much wiggle room, with the Court stating that “substantial compliance” is not sufficient for petitions. This leaves townships with the tough decision of either rejecting petitions for sometimes “minor” deficiencies (such as font type size) or certifying language from petitions that they know to be legally deficient.

If possible, communication with potential petitioners about the process may help avoid basic mistakes by petitioners. To do this, it is essential that you have a full understanding of the requirements applicable to the local ballot initiative at issue. Further, townships must consider how far they want to go in giving what amounts to legal advice for petitions. Some may stick to general guidance, while others may opt to provide their own petitions that they believe to meet legal requirements.

If you are dealing with a submitted petition that is legally deficient, a letter informing the petitioner of the deficiencies may help alleviate some of the tension surrounding the matter and help avoid future submissions of legally deficient petitions. It is often the case that an issue has broad popular support and the issue appearing on the ballot is inevitable. In those cases, even if a township board does not support a ballot initiative, it is often best for all parties to address the issue as soon as possible rather than delaying the inevitable, which is incentive to make sure petitioners are informed of requirements. With that said, there may be cases in which a time limitation precludes future submissions of a petition that is rejected, making the decision to reject even more consequential.

If you are facing a local ballot initiative petition, we recommend consulting with legal counsel. At a minimum, they can help you establish the general parameters of your review. For more complicated issues related to the application of the various statutes, they can help ensure that you have a sound basis for your ultimate decision.

 

Upcoming Webinars

Election Law Briefing: Key Points to Consider in Overseeing the Local Ballot Initiative Process | Thursday, April 15, 12 – 1 p.m.

Most people have a general idea about the seemingly simple process for local ballot initiatives. Many clerks may even have a standard process that is applied to every ballot initiative petition submitted. The problem is that there is not a single legal process that applies to all local ballot initiatives. Each type of ballot initiative has its own statute that provides its own requirements. We want to be sure that your township’s role in the ballot initiative review process is beyond reproach, particularly when contentious matters are at issue and parties on either side may seek to challenge a decision to approve or deny.

Attorneys Steve Koski and Jacob Fox will highlight some of the issues they have seen in township reviews of ballot initiative processes, including:

  • Establishing the proper scope of a township’s review of petitions.
  • Determining all applicable legal requirements for the ballot initiative at issue.
  • Understanding the interplay between the ballot initiative statute and the Michigan Election Law.
  • Rendering decisions and communicating with petitioners.

Join us to help ensure that your township has in place the best possible review process for local ballot initiatives!

Click here to Register!

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2021 Fahey Schultz Burzych Rhodes PLC

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